HILLARY Clinton and the Democrats push for comprehensive immigration reform, including a pathway to legalization for the approximate 11 million undocumented immigrants in the US. Of course, I’m fully in favor of comprehensive immigration reform. But as a starting point, could Hillary at least eliminate some of the harshest immigration laws ever enacted, which were signed into law by her husband, Bill? Some of Pres. Obama’s recent executive actions were brought about (or designed) to neutralize (or get around) some of the laws signed by Bill Clinton.
In 1996, Bill signed into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). That law brought about some of the harshest and most severe changes to immigration law, the effects of which are still felt today– after 20 years. As a refresher course, or to enlighten people, here are some of the changes brought about by IIRAIRA:
• Eliminating children as a basis for a person being granted a fraud waiver. Before IIRAIRA, if a person had a US citizen or LPR child, they were automatically granted a fraud waiver. Now, it does not matter how much pain and suffering a child has. Hardship on a child is not a factor and does not matter in connection with a waiver.
• Adding “extreme hardship” as a requirement for a fraud waiver. Before IIRAIRA, there was no requirement of demonstrating extreme hardship on certain qualifying relatives. If a person had a parent, spouse, or child who was a citizen or green card holder, or if the fraud occurred more than 10 years ago, the fraud waiver was automatically approved. No showing of extreme hardship was required. Now, people must demonstrate extreme hardship on a parent or spouse who is a citizen or immigrant, and fraud stays on your record for life.
• Hardship on the alien does not matter. Before IIRAIRA, hardship on the alien himself (or his children) could be considered. After Bill signed IIRAIRA, hardship on the alien is no longer considered.
• Creation of the 3/10 year bar! Before IIRAIRA, there was no 3/10 year bar. If a person was not eligible to adjust status in the US, the person simply departed the US and was processed for his immigrant visa in his home country, and then returned to the U.S. without any issues. With Bill’s 3/10 year bar, those same people were suddenly “trapped” in the US. They could not get a green card in the US, and if they departed the US, they could not return for 3 or 10 years, unless granted a waiver from abroad. Just recently, Pres. Obama’s executive actions for provisional waiver and expanded provisional waiver were an attempt to get around Bill’s 3/10 year bar.
• Creating a lifetime ban if a person claims to be a citizen to their employer. Before Bill’s IIRAIRA, false claims to US citizenship was NOT a lifetime ban. It was regular fraud, with a fraud waiver available. Moreover, “false claim to citizenship” applied only if the person claimed to be a citizen to a GOVERNMENT OFFICIAL. IIRAIRA made it a permanent/lifetime ban if a person claimed to be a citizen even to his employer. No waiver is available.
• No judicial review of USCIS “discretionary” decisions. If USCIS denies a person’s petition, application, or waiver, “as a matter of discretion”, the person cannot seek court review of that discretionary decision/denial. Before IIRAIRA, it was possible to have court oversight and review of USCIS discretionary denials. Some discretionary decisions\denials include whether a person has demonstrated “extreme hardship” in connection with fraud waivers, or other forms of relief that required USCIS discretion. Many people who were turned down by USCIS and sought court assistance, find their cases are dismissed for “lack of jurisdiction”, as the denial involved a case of USCIS exercising “discretion”.
As stated above, I am in favor of comprehensive immigration reform. I am also glad Hillary and the Democrats are “pro-immigrants”. I also understand that comprehensive immigration reform may be a long and arduous process. So, could Hillary at least attempt to neutralize some of the laws signed by Bill?
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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