[Congressional Record Volume 142, Number 141 (Thursday, October 3, 1996)]
[Senate]
[Pages S12294-S12295]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  DETENTION AND 212(c) WAIVERS FOR CRIMINAL ALIENS PROVISIONS OF H.R. 
                                  2202

  Mr. ABRAHAM. Mr. President, I would like to ask the chairman of the 
Judiciary Committee to clarify a few changes made in the criminal alien 
provisions of the Senate immigration bill when the House and Senate 
conferees adopted the conference report on H.R. 2202, the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996. These 
provisions are included in this omnibus appropriations measure. I know 
Senator Hatch was deeply involved in the development of the section on 
criminal aliens, as a conferee on this legislation.
  First, I would like to ask about a change made to the exception to 
mandatory detention for criminal aliens. Section 303(a) of the 
conference report would add to the Immigration and Nationality Act a 
new section providing for mandatory detention of criminal aliens by the 
Attorney General prior to deportation or exclusion, which was already 
required under the Anti-terrorism and Effective Death Penalty Act 
signed into law earlier this year. That section in the conference 
report also includes a provision permitting release in extremely narrow 
circumstances--specifically, only for criminal aliens who qualify for 
the Witness Protection Program under section 3521 of title 18, United 
States Code, in the discretion of the Attorney General. I would like to 
ask the Senator if this section, new section 236(c)(2), requires that 
the criminal alien actually be admitted to the Witness Protection 
Program, under section 3521 of title 18, before being eligible for 
release?
  Mr. HATCH. Yes. The criminal aliens may be released from custody only 
if the Attorney General has accepted the alien into the Witness 
Protection Program. That is reflected in the statutory language 
specifically providing that the release provision applies ``only if'' 
the Attorney General makes a determination pursuant to section 3521 of 
title 18, United States Code to accept an alien into the Witness 
Protection Program.
  Mr. ABRAHAM. Then, the release criteria regarding the criminal 
alien's safety to the community, the severity of the offense, and the 
criminal alien's likelihood of appearing for deportation proceedings 
are to be applied after the alien has been accepted to the witness 
protection program?
  Mr. HATCH. Yes. Those criteria are intended to limit the 
circumstances in which criminal aliens who have been admitted to the 
Witness Protection Program may be released. The statutory language in 
new section 236(c)(2) clearly provides that those are additional limits 
on the Attorney General's release authority. The fact that a criminal 
alien has been admitted to the program is not alone sufficient to 
justify releasing that alien. In order to release the alien, the 
Attorney General must also be satisfied that the alien will not pose a 
danger to the safety of other persons or of property, is likely to 
appear for any scheduled proceedings, and the Attorney General is 
required to give due consideration to the severity of the offense 
committed by the alien.

[[Page S12295]]

  Mr. ABRAHAM. The Senate Immigration bill included a somewhat 
different set of criteria for the release of criminal aliens prior to 
deportation, permitting release only for aliens who are cooperating 
with law enforcement authorities or for purposes of national security, 
in the Attorney General's sole and unreviewable discretion. Could you 
explain the purpose of this change?
  Mr. HATCH. The conference report provision is intended to limit 
the conditions for release permitted in the Senate bill to those 
necessary to serve the purposes the Senate was trying to accomplish. 
The Senate provisions may have permitted releases under more 
circumstances than were truly necessary. To begin with, the conference 
report does not permit the release of criminal aliens for purposes of 
cooperating with law enforcement unless the alien has been accepted 
into the Witness Protection Program pursuant to section 3521 of title 
18. Nor does the conference report permit the release of criminal 
aliens for purposes of national security, because it was difficult to 
imagine a circumstance in which the release of a convicted criminal 
would serve our national security interests--unless the criminal had 
been accepted into the Witness Protection Program.

  Thus, I can assure the Senator from Michigan that the central purpose 
of the Senate amendments regarding mandatory detention--preventing the 
release of criminal aliens to further prey on American citizens--is 
furthered by the conference provision to an even greater degree than 
the Senate provision.
  Mr. ABRAHAM. Finally, I have one more question for the distinguished 
Senator from Utah, regarding the changes made to eligibility of 
criminal aliens for waivers of deportation or exclusion under old 
section 212(c) of title 8, United States Code. The Anti-terrorism and 
Effective Death Penalty Act signed into law earlier this year, as well 
as the Senate Immigration bill, eliminated the possibility of 212(c) 
waivers for any criminal aliens who had committed any of several crimes 
that make aliens deportable under section 241 of title 8, United States 
Code. The conference report restores 212(c)-type waivers for criminal 
aliens who have not been convicted of aggravated felonies. Could you 
explain the purpose of this change?
  Mr. HATCH. Let me say first of all that I share the Senator's concern 
with the procedural abuses under this country's immigration laws that 
have long been available to criminal aliens. The limitations on 212(c)-
type eligibility for criminal aliens in the conference report, which 
appear in new section 240A(a), is intended to put an end to that. The 
reason the total bar on 212(c) review for criminal aliens in the 
Terrorism Act was revised to bar only aggravated felons was that, 
first, the definition of ``aggravated felony'' has been expanded to 
encompass most of the deportable crimes under old section 241, for 
which 212(c) review was barred in the Terrorism Act. Second, there was 
some concern that there might be certain rare circumstances we had not 
contemplated, when removal of a particular criminal alien might not be 
appropriate. For example, an alien with one minor criminal conviction 
several decades ago, who has clearly reformed and led an exemplary life 
and made great contributions to this country, we believed ought to 
retain eligibility for a waiver of deportation or exclusion.
  Mr. ABRAHAM. So, 212(c) relief--or new section 240A(a) relief--is 
intended only for highly unusual cases involving outstanding aliens 
such as the one you describe?
  Mr. HATCH. That is correct. The extraordinary circumstances necessary 
for a grant of 212(c) relief should refer to the insignificance of the 
crime, and to substantial contributions to society made by the alien. 
To qualify for section 212(c) or analogous relief, despite the 
existence of a criminal conviction, an alien will have to show 
substantial benefits this county from granting the relief--not the 
potential hardship to the alien from not granting relief. I understand 
your concern that relief under this section will not be so limited, 
since it has not been so limited in practice in the past. We believed, 
however, that passage of the Anti-terrorism and Effective Death Penalty 
Act sufficiently demonstrated the Congress' serious concern about the 
abuse of section 212(c), that we could expect Immigration Judges to 
begin using their discretion under section 212(c) more judiciously. As 
you know, the Terrorism Act eliminated 212(c) relief for virtually any 
alien who had been convicted of any crime, including some misdemeanors. 
Several members believed that only by eliminating Immigration Judges' 
discretion to grant section 212(c) relief to criminal aliens altogether 
could we prevent section 212(c) from being used to grant relief too 
freely. The prevailing view was that the Terrorism Act sent a clear 
message that section 212(c) was being abused, and that Immigration 
Judges could be expected to respond to that message and take a hard 
look at 212(c) relief. The partial restoration of section 212(c) relief 
for aliens who have not committed aggravated felonies will test that 
theory.

  Mr. ABRAHAM. That, of course, has been my concern. Section 212(c) 
relief was always intended to apply only to ``those cases where 
extenuating circumstances clearly require such action''--as Congress 
put it when it enacted section 212(c) as part of the Immigration and 
Nationality Act in 1952. For the past 8 years, however, 212(c) relief 
has been granted to more than half of all who apply, the vast majority 
of whom are criminal aliens, amounting to thousands of criminal aliens 
per year.
  Mr. HATCH. I agree with the Senator. Now that we have restored 
section 212(c) waivers for a small percentage of criminal aliens we 
expect Immigration Judges to use their discretion under this new 
section only in unusual cases involving exceptional immigrants whose 
criminal records consist only of minor crimes committed many years 
ago.We expect that to be the case under these new provisions.
  Mr. ABRAHAM. If the limited restoration of section 212(c) relief does 
not include reasonable limitations on its use, I will be prepared to 
work with my colleagues to address that problem. Is my understanding 
correct that you too will pay close attention to how this provision is 
interpreted?
  Mr. HATCH. Yes. I would also like to let the Senator from Michigan 
know how much I appreciate his commitment and dedication on this issue.
  Mr. ABRAHAM. Thank you. I would likewise thank the Chairman of the 
Judiciary Committee for his diligent efforts on this issue in 
conference and his explanation of the conference report's provisions.

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