[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 3120 Introduced in Senate (IS)]
106th CONGRESS
2d Session
S. 3120
To amend the Immigration and Nationality Act to modify restrictions
added by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 27 (legislative day, September 22), 2000
Mr. Kennedy (for himself, Mr. Graham, Mr. Leahy, Mr. Kerry, Mr.
Wellstone, Mr. Durbin, and Mr. Feingold) introduced the
following bill; which was read twice and referred to the
Committee on the JudiciaryYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to modify restrictions
added by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES IN ACT.
(a) Short Title.--This Act may be cited as the ``Immigrant Fairness
Restoration Act of 2000''.
(b) References in Act.--Except as otherwise specifically provided
in this Act, whenever in this Act an amendment or repeal is expressed
as an amendment to or a repeal of a provision, the reference shall be
deemed to be made to the Immigration and Nationality Act (8 U.S.C. 1101
et seq.).
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The United States has a time-honored tradition as a
Nation of immigrants and a Nation of just laws. Our immigration
laws no longer reflect that tradition.
(2) Current laws punish legal residents out of proportion
to their crimes. Reform is needed to restore balance to our
immigration system. Fundamental principles of fairness in the
application of the laws, due process, and judicial review must
apply to the foreign born and native born alike.
(3) Laws should not be applied retroactively. Fairness and
practicality dictate that changes in definitions of crimes that
make aliens deportable should only apply to crimes committed
after dates of enactment. Immigration policy should not change
the rules in the middle of the game.
(4) Proportionality and discretion should be restored to
our Nation's immigration laws. We must restore the discretion
immigration judges previously had and responsibly exercised to
evaluate cases on an individual basis and grant relief from
deportation to deserving families.
(5) Detention of individuals is an extraordinary power that
should only be used in extraordinary circumstances. The
mandatory detention of immigrants who have paid their debt to
society and pose no threat is anathema to the protections of
the Constitution's Due Process Clause.
(6) Our judicial system is one of checks and balances and
nowhere are these protections more imperative than in questions
of deportation and incarceration which so fundamentally
restrict individual liberties. Judicial review of immigration
orders and determinations is necessary to ensure that these
most weighty determinations are not made capriciously or
erroneously. Immigrants deserve their day in court.
SEC. 3. ELIMINATION OF RETROACTIVITY.
(a) Cancellation of Removal.--Section 240A (8 U.S.C. 1229b) is
amended by adding at the end the following new subsection:
``(f) Application of Law.--Notwithstanding any other provision of
this section, an alien who committed an offense that was a ground for
deportation or exclusion prior to April 1, 1997, shall have the law in
effect at the time of the offense apply with respect to any application
for relief from deportation or exclusion on that ground. For purposes
of determining eligibility for such relief, such alien shall be
credited with any periods of residency in the United States that the
alien has accrued without regard to whether or not the residency
occurred after the commission of the offense or service of a notice to
appear under section 239(a).''.
(b) Application of Aggravated Felony Definition.--The last sentence
of section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended to read as
follows: ``The term shall not apply to any offense that was not covered
by the term on the date on which the offense occurred.''.
(c) Grounds of Deportability.--Section 237 (8 U.S.C. 1227) is
amended by adding at the end the following new subsection:
``(d) Notwithstanding any other provision of this section, an alien
is not deportable or removable by reason of committing any offense that
was not a ground of deportability on the date the offense occurred.''.
(d) Grounds of Inadmissibility.--Section 212 (8 U.S.C. 1182) is
amended by adding at the end the following new subsection:
``(p)(1) Notwithstanding any other provision of this section, an
alien is not inadmissible by reason of committing any offense that was
not a ground of inadmissibility on the date the offense occurred.
``(2) Any alien who applied for admission to the United States or
adjustment of status to that of an alien lawfully admitted for
permanent residence prior to April 1, 1997, and was inadmissible under
subsection (a)(6)(C), shall be eligible for the relief available
(including any waiver of inadmissibility) at the time the application
was filed.''.
(e) Prospective Effective Dates.--
(1) Illegal immigration reform and immigrant responsibility
act.--Notwithstanding any other provision of law, the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
and the amendments made by that Act, shall apply only to
persons seeking admission, or who became removable, on or after
April 1, 1997, as the case may be.
(2) Antiterrorism and effective death penalty act of
1996.--Notwithstanding any other provision of law, title IV of
the Antiterrorism and Effective Death Penalty Act of 1996, and
the amendments made by that title, shall only apply to persons
seeking admission, or who become removable, on or after April
24, 1996.
(f) Reinstatement of Removal Orders.--Section 241(a)(5) (8 U.S.C.
1231(a)(5)) is repealed, and such repeal shall apply to all proceedings
pending at any stage as of the date of enactment of this Act and to all
cases brought on or after such date.
SEC. 4. RESTORATION OF PROPORTIONALITY TO GROUNDS OF REMOVAL.
(a) Definition of Crimes Involving Moral Turpitude.--Section
237(a)(2)(A)(i) (8 U.S.C. 1227(a)(2)(A)(i)) is amended to read as
follows:
``(i) Crimes of moral turpitude.--Any alien who is
convicted of a crime involving moral turpitude (other
than a purely political offense or an attempt to commit
such a crime) committed within five years (or 10 years
in the case of an alien provided lawful permanent
residence status under section 245(j)) for which the
alien is confined in a prison or correctional
institution for more than one year, is deportable.''.
(b) Definition of Aggravated Felony.--Section 101(a)(43) (8 U.S.C.
1101(a)(43)) is amended--
(1) in subparagraphs (F), (G), (J), (R), and (S), by
striking ``one year'' each place it appears and inserting
``more than five years'';
(2) by amending subparagraph (N) (8 U.S.C. 1101(a)(43)(N))
to read as follows:
``(N) an offense described in section 274(a)(1) (relating
to alien smuggling) for the purpose of commercial advantage.'';
(3) in subparagraph (P)(ii) (8 U.S.C. 1101(a)(43)(P)(ii)),
by striking ``child'' and inserting ``son or daughter'';
(4) in subparagraph (T), by striking ``two years'' and
inserting ``five years''; and
(5) by adding at the end of section 101(a)(43) the
following: ``No crime shall be deemed to be an aggravated
felony if the underlying conviction is a misdemeanor or if the
sentence imposed is not in excess of one year.''.
(c) Effective Date.--The amendments made by subsection (b) shall
apply to convictions entered before, on, or after the date of enactment
of this Act.
(d) Conviction Defined.--Section 101(a)(48)(A) (8 U.S.C.
1101(a)(48)(A)) is amended--
(1) by redesignating clauses (i) and (ii) as subclauses (I)
and (II), respectively;
(2) by striking ``(48)(A) The term'' and inserting
``(48)(A)(i) Except as provided in clause (ii), the term''; and
(3) by adding at the end the following:
``(ii) For purposes of determinations under this Act, the term
`conviction' does not include any Federal, State, or foreign action to
expunge, dismiss, cancel, vacate, discharge, or otherwise remove a
guilty plea or other record of guilt or conviction, or any Federal,
State, or foreign deferred adjudication, adjudication of guilt
withheld, order of probation without entry of judgment, or similar
disposition.''.
(e) Definition of Term of Imprisonment.--Section 101(a)(48)(B) (8
U.S.C. 1101(a)(48)(B)) is amended to read as follows:
``(B) Any reference to a term of imprisonment or a sentence with
respect to an offense is deemed to include the period of incarceration
or confinement ordered by a court of law excluding any period of the
suspension of the imposition or execution of that imprisonment or
sentence in whole or in part.''.
(f) Conforming Amendments.--
(1) Ground of inadmissibility.--Section 212(a)(6)(E) (8
U.S.C. 1182(a)(6)(E)) is amended--
(A) in clause (i), by inserting ``and for
commercial advantage'' after ``knowingly'';
(B) by striking clause (ii); and
(C) by redesignating clause (iii) as clause (ii).
(2) Ground of deportability.--Section 237(a)(1)(E) (8
U.S.C. 1227(a)(1)(E)) is amended--
(A) in clause (i), by inserting ``and for
commercial advantage'' after ``knowingly'';
(B) by striking clause (ii); and
(C) by redesignating clause (iii) as clause (ii).
SEC. 5. RESTORATION OF DISCRETIONARY RELIEF FROM REMOVAL.
(a) Cancellation of Removal.--Section 240A(a) (8 U.S.C. 1229b(a))
is amended--
(1) by redesignating paragraphs (1) through (3) as
subparagraphs (A) through (C), respectively; and
(2) by amending subparagraph (C) (as so redesignated) to
read as follows:
``(C) has not been convicted of an aggravated felony for
which the sentence imposed is five years or more.''.
(b) Repeal of Rule for Termination of Continuous Period.--
(1) Section 240A(d)(1) (8 U.S.C. 1229b(d)(1)) (8 U.S.C.
1229b(a)) is repealed.
(2) Section 240A(d) (8 U.S.C. 1229b) is amended--
(A) by redesignating paragraphs (2) and (3) as
paragraphs (1) and (2), respectively; and
(B) by inserting before the period at the end of
paragraph (1) (as redesignated) the following: ``,
unless the alien's departure from the United States was
due to a temporary trip abroad required by emergency or
extenuating circumstances outside the control of the
alien''.
(c) Waiver.--Section 212(h) (8 U.S.C. 1182(h)) is amended by
striking the third and fourth sentences.
(d) Restoration of Eligibility for Withholding of Removal.--Section
241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B)) is amended--
(1) by amending clause (ii) to read as follows:
``(ii) the alien--
``(I) has been convicted by final
judgment of a particularly serious
crime for which the sentence imposed
was an aggregate term of imprisonment
of five years or more; and
``(II) is a danger to the United
States.''; and
(2) by striking the third sentence and inserting at the end
the following: ``Notwithstanding this subparagraph, an alien
shall be eligible for relief under subparagraph (A) if the
Attorney General determines the alien should not be removed for
urgent humanitarian reasons.''.
(e) Waiver for Parent, Son, or Daughter.--Section 212(d)(12) (8
U.S.C. 1182(d)(12)) is amended by striking ``or child'' and inserting
``, parent, son, or daughter''.
(f) Waiver of Inadmissibility Under Section 212(i).--
(1) In general.--Section 212(i) (8 U.S.C. 1182(i)) is
amended to read as follows:
``(i) The Attorney General may, in the discretion of the Attorney
General, waive the application of subsection (a)(6) (A), (B), or (C) in
the case of an immigrant who is the parent, spouse, son, or daughter of
a United States citizen or of an alien lawfully admitted for permanent
residence if it is established to the satisfaction of the Attorney
General that the refusal of admission to the United States of such
immigrant alien would result in hardship to the alien or to the citizen
or lawfully resident parent, spouse, son, or daughter of such an
alien.''.
(2) Conforming amendment.--Section 212(a)(6) (8 U.S.C.
1182(a)(6)) is amended by adding at the end the following new
subparagraph:
``(H) For provision authorizing waiver of certain
subparagraphs of this paragraph, see subsection (i).''.
SEC. 6. JUDICIAL REVIEW OF CERTAIN ORDERS AND DETERMINATIONS.
(a) Repeals.--The following provisions of the Act are hereby
repealed and such repeal shall apply to all cases pending at any stage
in any court as of the date of enactment of this Act and to all cases
brought on or after such date:
(1) Section 242(a)(2) (8 U.S.C. 1252(a)(2)).
(2) Section 242(a)(3) (8 U.S.C. 1252(a)(3)).
(3) Section 242(b)(4) (8 U.S.C. 1252(b)(4)).
(4) Section 242(b)(7) (8 U.S.C. 1252(b)(7)).
(5) Subsections (e), (f), and (g) of section 242 (8 U.S.C.
1252).
(6) Section 240(b)(5)(D) (8 U.S.C. 1229a(b)(5)(D)).
(7) Section 240B(f) (8 U.S.C. 1229c(f)).
(8) Section 208(a)(3) (8 U.S.C. 1158(a)(3)).
(9) Section 208(b)(2)(D) (8 U.S.C. 1158(b)(2)(D)).
(10) Section 208(d)(7) (8 U.S.C. 1158(d)(7)).
(b) Amendments Relating to Judicial Review.--
(1) In general.--(A) Section 242(a)(1) (8 U.S.C.
1252(a)(1)) is amended--
(i) by striking ``(other than an order of removal
without a hearing pursuant to section 235(b)(1))''; and
(ii) by striking ``and except that the court may
not order the taking of additional evidence under
section 2347(c) of such title''.
(B) Section 242(b)(2) (8 U.S.C. 1252(b)(2)) is amended in
the first sentence by striking ``judge completed the
proceedings'' and inserting ``proceedings were conducted in
whole or in part, or in the judicial circuit in which lies the
residence of the petitioner as defined in this Act, but not in
more than one judicial circuit''.
(C) Section 242(b)(3)(B) (8 U.S.C. 1252(b)(3)(B)) is
amended--
(i) by striking ``does not'' and inserting
``shall''; and
(ii) by striking ``, unless the court orders
otherwise''.
(D) Section 242(b)(9) (8 U.S.C. 1252(b)(9)) is amended by
striking ``any action taken or proceeding brought to remove an
alien from the United States'' and inserting ``a challenge to a
final administrative order of removal''.
(E) Sections 212(d)(12) (8 U.S.C. 1182(d)(12)), 212(h) (8
U.S.C. 1182(h)), 237(a)(3)(C)(ii) (8 U.S.C. 1227(a)(3)(C)(ii)),
and 240B(e) (8 U.S.C. 1229c(e)) are amended by striking the
last sentence of each.
(F) Section 279 (8 U.S.C. 1329) is amended--
(i) by striking ``brought by the United States that
arise under'' and inserting ``arising under any''; and
(ii) by striking the last sentence.
(G) Section 245A(f)(4)(A) (8 U.S.C. 1255a(f)(4)(A)) is
amended by striking ``106'' and inserting ``242''.
(2) Application of the amendments.--The amendments made by
paragraph (1) shall apply to all cases pending at any stage in
any court as of the date of enactment.
(c) Repeals of Transitional Changes in Judicial Review.--
Subparagraphs (B), (E), (F), and (G) of section 309(c)(4) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(Division C of Public Law 104-208) are hereby repealed, and such repeal
shall apply to all cases pending at any stage in any court as of the
date of enactment of this Act and to all cases brought on or after such
date.
(d) Repeals of Other Changes in Judicial Review.--(1)(A) Section
245A(f)(4) of the Immigration and Nationality Act (8 U.S.C.
1255a(f)(4)) is amended by striking subparagraph (C).
(2) The amendment made by subsection (a) shall be effective as if
included in the enactment of section 201 of the Immigration Reform and
Control Act of 1986 (Public Law 99-603; 100 Stat. 3394) and shall apply
to all cases pending at any stage in any court as of the date of
enactment of this Act.
(e) Inspection Determinations.--Section 235(b)(1) (8 U.S.C.
1225(b)(1)) is amended by striking ``without further hearing or
review'' each of the two places it appears.
(f) Conforming Amendments.--
(1) The section heading of section 242 (8 U.S.C. 1252) is
amended by striking ``of orders of removal''.
(2) The table of contents of the Act is amended by striking
the item relating to section 242 and inserting the following:
``Sec. 242. Judicial review.''.
(g) Clarification of Judicial Review.--Section 242(b) (8 U.S.C.
1252(b)) is amended by adding at the end the following new paragraphs:
``(10) Jurisdiction to review other than a final
administrative removal order.--The district courts shall have
jurisdiction by habeas corpus or otherwise to review all
matters not encompassed within a final administrative order of
removal reviewable by petition for review under this section.
``(11) In-custody habeas corpus.--Any alien held in custody
pursuant to an order of removal may obtain judicial review by
habeas corpus proceedings--
``(A) of any matter that was not required to have
been or could not have been brought by petition for
review pursuant to this section; or
``(B) if the remedy provided by petition for review
pursuant to this section was inadequate.''.
SEC. 7. DETENTION.
(a) Detention.--Section 236(c) (8 U.S.C. 1226(c)) is amended--
(1) in paragraph (1), by striking ``Attorney General
shall'' and inserting ``Attorney General may''; and
(2) by amending paragraph (2) to read as follows:
``(2) Release.--The Attorney General shall release any
alien described in paragraph (1) if the alien satisfies the
Attorney General that the alien will not pose a danger to the
safety of other persons or of property and is likely to appear
for any scheduled proceeding. All custody, bond, and parole
determinations shall be reviewable by an immigration judge and
subject to administrative appeal.''.
(b) Habeas Corpus Review of Detention.--Section 236(e) (8 U.S.C.
1226(e)) is amended to read as follows:
``(e) Habeas Corpus Challenge to Detention Determinations.--Any
person may challenge by a writ of habeas corpus his detention by the
Attorney General, including any determination regarding the grant,
revocation, denial, or condition of bond or parole.''.
(c) Detention of Aliens Not Subject to Immediate Removal.--Section
241(a) (8 U.S.C. 1231(a)) is amended--
(1) by redesignating paragraph (6) as paragraph (6)(A);
(2) in paragraph (6)(A) (as redesignated), by inserting
``for a reasonable period of time, not to exceed 9 months
following the removal period, to allow for ongoing negotiations
to effect such removal'' after ``removal period''; and
(3) by adding at the end of paragraph (6)(A) (as
redesignated) the following:
``(B) Upon conclusion of the removal period and every 90
days thereafter, the Attorney General shall review whether
continued detention of the alien is authorized under subsection
(a).
``(C) Determinations under this subparagraph shall be
subject to de nova review by an immigration judge and
administrative appeal. In such review, it shall be the Attorney
General's burden to prove that continued detention is
authorized under subsection (a).''.
(d) Limitation.--Section 241 (8 U.S.C. 1231) is amended by adding
at the end the following:
``(j) Notwithstanding any other provision of this section,
including subsection (a)(2), the Attorney General may not detain an
alien who is able to demonstrate to the Attorney General that--
``(1) the alien is not a risk to the community and is
likely to comply with the order of removal; and
``(2) removal of the alien cannot be effectuated within the
period specified in section 241(a)(6)(A).
The determination by the Attorney General shall be subject to de nova
review by an immigration judge and administrative appeal.''.
(e) Orders of Supervision.--Section 241(a)(3) (8 U.S.C. 1231(a)(3))
is amended by adding at the end the following new sentence: ``Such
determinations and orders of supervision shall be subject to de nova
review by an immigration judge and administrative appeal.''.
SEC. 8. RIGHT TO COUNSEL.
Section 292 (8 U.S.C. 1362) is amended to read as follows: ``In any
bond, custody, detention, or removal proceedings before the Attorney
General and in any appeal proceedings before the Attorney General from
any such proceedings, the person concerned shall have the privilege of
being represented by such counsel, authorized to practice in such
proceedings, as he shall choose. With consent of their clients, counsel
may enter appearances limited to bond, custody, or other specific
proceedings.''.
SEC. 9. ABSENCES OUTSIDE THE CONTROL OF THE ALIEN.
Section 101(a)(13)(C) (8 U.S.C. 1101(a)(13(C)) is amended--
(1) by amending clause (ii) to read as follows:
``(ii) has been absent from the United
States for a continuous period in excess of one
year unless the alien's return was impeded by
emergency or extenuating circumstances outside
the control of the alien,''; and
(2) by striking clauses (iv) and (v).
SEC. 10. APPLICANTS FOR ADMISSION.
(a) Inspections Generally.--Section 235(a) (8 U.S.C. 1225(a)) is
amended--
(1) by striking paragraph (1); and
(2) by redesignating paragraphs (2), (3), (4), and (5) as
paragraphs (1), (2), (3), and (4), respectively.
(b) Screenings.--Section 235(b)(1)(A) (8 U.S.C. 1225(b)(1)(A)) is
amended by striking clause (iii).
SEC. 11. STATUTORY CONSTRUCTION.
Nothing in this Act may be construed to make any alien ineligible
for any relief from removal or other benefit under this Act to which he
or she was eligible before enactment of this Act.
SEC. 12. REPEALS.
(a) Challenges to Deportation Orders.--Section 276(d) (8 U.S.C.
1326(d)) is repealed and such repeal shall apply to all cases pending
at any stage in any court as of the date of enactment of this Act and
to all cases brought on or after such date.
(b) Collateral Attacks.--Section 235(b)(1)(D) is repealed, and such
repeal shall apply to all cases pending at any stage in any court as of
the date of enactment of this Act and to all cases brought on or after
such date.
SEC. 13. REMOVAL OF ALIENS WHO ARE NOT PERMANENT RESIDENTS AND WHO HAVE
NO RELIEF FROM REMOVAL.
(a) Eligibility for Relief From Removal.--Section 238(b)(5) (8
U.S.C. 1228(b)(5)) is repealed, and such repeal shall apply to all
proceedings pending at any stage as of the date of enactment of this
Act and to all cases brought on or after such date.
(b) Requirements for Determinations of Deportability and Orders of
Removal.--Section 238(b)(2) (8 U.S.C. 1228(b)(2)) is amended--
(1) by striking ``or'' at the end of subparagraph (A);
(2) by striking the period at the end of subparagraph (B)
and inserting ``; or''; and
(3) by adding at the end the following new subparagraph:
``(C) is not eligible for any relief from
removal.''.
SEC. 14. REPEAL OF GROUND OF INADMISSIBILITY.
Section 212(a)(9)(B) (8 U.S.C. 1182(a)(9)(B)) is repealed.
SEC. 15. REOPENING OF CERTAIN PROCEEDINGS AND PAROLE OF CERTAIN
PREVIOUSLY REMOVED ALIENS.
(a) In General.--The Attorney General shall establish a process by
which an alien described in subsection (b) may apply for reopening a
proceeding so as to seek relief from exclusion, deportation, or removal
under section 212(c), as such section was in effect prior to the
enactment of the Antiterrorism and Effective Death Penalty Act, or
section 240A, as amended by this Act.
(b) Alien Described.--An alien referred to in subsection (a) is an
alien who received a final order of exclusion, deportation, or removal,
or a decision on a petition for review or petition for habeas corpus on
or after the effective date of the Antiterrorism and Effective Death
Penalty Act and who would have been eligible for relief from exclusion,
deportation, or removal under the amendments made by this Act.
(c) Parole.--The Attorney General may exercise the parole authority
under section 212(d)(5)(A) of the Immigration and Nationality Act (8
U.S.C. 1182(d)(5)(A)) for the purpose of permitting aliens excluded,
deported, or removed from the United States to participate in the
process established under subsection (a), if the alien establishes
prima facie eligibility for the relief.
(d) Judicial Review.--A judgment regarding the granting or denial
of relief under this section shall be subject to judicial review in
accordance with the appropriate section of the Immigration and
Nationality Act.
SEC. 16. STATUTORY CONSTRUCTION.
In the case of an alien who is eligible for relief under section
212(c) of the Immigration and Nationality Act (as in effect before the
enactment of section 440(d) of the Antiterrorism and Effective Death
Penalty Act of 1996) (Public Law 104-132; 110 Stat. 1277), nothing in
this Act shall be construed to modify such eligibility.
SEC. 17. AUTHORITY OF THE ATTORNEY GENERAL.
Notwithstanding any other provision of law, nothing in this Act
shall be construed to diminish the authority of the Attorney General to
exercise discretion in appropriate cases involving urgent humanitarian
reasons, a significant public benefit (including ensuring family
unity), or other sufficiently compelling reasons.
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