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Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) |
The IIRIRA focused on illegal immigration reform and included some of the toughest measures ever taken against illegal immigration. Title I dealt with border enforcement, requiring that the number of border patrol agents be doubled to 10,000 over five years, and that a fourteen-mile-long fence be built along the Mexican border. Title II covered enhanced enforcement and penalties against alien smuggling and document fraud. Title III completely revamped existing deportation and exclusion proceedings, allowed for summary exclusion, and provided new grounds for exclusion and deportation. Title IV, which covered employer sanctions, called for a reduction in the number of documents that are acceptable for I-9 purposes and provided for three pilot programs to test electronic verification of an employee's work status. Title V contained the welfare provisions, which have undergone significant revisions. Title VI included stringent changes to existing refugee and asylum procedures, as well as numerous miscellaneous provisions, including the extension of the "Conrad State" Program (which permits waivers of the two-year foreign residence requirement for foreign medical graduates) and the Visa Waiver Program.
The most important single change made by the IIRIRA was to penalize for the first time aliens who spend time out of status in the United States. Aliens with between 180 and 365 days out of status are barred, upon departure, from returning to the United States for three years. Aliens with more than 365 days out of status are barred, upon departure, from returning to the United States for ten years. This penalty for spending time in the United States out of status radically changes some of the strategic considerations in immigration cases, and makes it more difficult for individuals to complete immigration when they have been in the United States in unlawful status for substantial periods of time.
Another significant revision made by the IIRIRA was the elimination of the concept of "entry" as the key factor in determining whether an alien is subject to removal as an inadmissible or deportable alien. Instead, the key concept is now "admission," defined as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." Thus, aliens who enter the United States without inspection are now deemed applicants for admission and are subject to the grounds for inadmissibility. As under prior law, an alien who is paroled under section 212(d)(5) of the INA or permitted to land temporarily as an alien crewman is not considered to have been admitted and is therefore deemed a person seeking admission and subject to the exclusion grounds. Moreover, a returning lawful permanent resident will not be deemed to be seeking admission except under certain circumstances.
The IIRIRA also increased significantly the penalty for a prior exclusion or deportation. Aliens who are found inadmissible upon arrival (that is, those persons who were previously subject to exclusion) are now barred from readmission for a five-year period, up from one year under prior law. Aliens who are found deportable after admission (that is, those persons who were previously subject to deportation) are now barred from readmission for a ten-year period, up from five years under prior law.
The procedures by which aliens are found inadmissible or removable have been substantially changed under the IIRIRA. Separate exclusion and deportation proceedings have been eliminated in favor of a single removal proceeding. The different burdens of proof and procedural rights for aliens seeking admission and those who have been admitted to the United States remain in effect. Aliens who are seeking admission can be subjected to a summary removal procedure if they arrive at the border with fraudulent admission documents, the wrong admission documents, or no admission documents at all. These aliens are not entitled to a proceeding before an immigration judge unless they claim asylum and can show a "credible fear" of persecution. Once summarily removed, they are subject to the five-year bar on readmission. In addition, if they are determined to have committed fraud, they must obtain a waiver of that ground for inadmissibility before being permitted to return to the United States at any time in the future.
Suspension of deportation was retitled cancellation of removal under section 240A(b) of the INA and was made far more stringent than it was under prior law. The applicant must have ten years of continuous residence in the United States, which is considered terminated upon the commencement of removal proceedings against the applicant. In addition, the applicant must show "exceptional and extremely unusual" hardship to his or her citizen or permanent resident relatives to be granted cancellation. Under prior law, only extreme hardship needed to be shown and the hardship could have been to the applicant as well as to his or her qualifying family members. Section 212(c) relief has been retitled cancellation of removal under section 240A(a), and has also been made more stringent under the new law. Specifically, the seven-year period of continuous residence in the United States is deemed to end when the alien is served a notice to appear commencing removal proceedings or when the alien has committed an offense that renders the alien removable, whichever is earliest. These provisions recede dramatically from prior law. Under prior law, only a final administrative order of deportation terminated lawful domicile, and an alien could continue to accrue time toward the seven year requirement until such an order was entered. In addition, the Board had specifically rejected the notion that a conviction for a removable offense resulted in termination of lawful domicile for section 212(c) purposes. These revisions have made it more difficult for residents to establish the requisite continuous residence for cancellation of removal purposes under section 240A(a).
An additional prerequisite for immigration of all family-sponsored immigrants was added by the IIRIRA. Under the requirement, the intending immigrant's sponsor must submit a legally binding affidavit of support demonstrating the ability to support the alien, the alien's accompanying family members, and any other members of the sponsor's preexisting household at 125% of the current poverty level, as established annually by the Department of Health and Human Services. If the sponsor cannot meet the requisite income standard, a co-sponsor who can meet the standard may also submit an affidavit of support. Any co-sponsor is equally liable to reimburse the government for any means-tested public assistance received by the immigrant until he or she becomes a citizen, leaves the United States permanently, accrues at least forty quarters of employment in the United States, or dies. The liability continues even if the sponsor and immigrant become divorced. In addition, the immigrant can enforce the affidavit against the sponsor. The sponsor must keep the government notified of any changes of address during the entire period of the affidavit's enforceability, potentially ten years or more.
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