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AMERICAN JUSTICE THROUGH IMMIGRANTS’ EYES Commission on Immigration Leadership Conference on Civil Rights Education Fund AMERICAN BAR ASSOCIATION AMERICAN JUSTICE THROUGH IMMIGRANTS’ EYES Commission on Immigration Leadership Conference on Civil Rights Education Fund AMERICAN BAR ASSOCIATION 1629 K Street, NW 740 Fifteenth Street, NW Tenth Floor Ninth Floor Washington, DC 20006 Washington, DC 20005 Copyright © 2004 American Bar Association All rights reserved. ISBN No. 1-59031-384-4 AMERICAN JUSTICE THROUGH IMMIGRANTS’ EYES Washington, DC Unless specifically noted as the policy of the American Bar Association, the views expressed herein have not been approved by the House of Delegates or the Board of Governors of the Association and, accordingly, should not be construed as representing the policy of the Association. © Photos by Steven Rubin TABLE OF CONTENTS Acknowledgments .................................................................................................... iii Foreword .................................................................................................................... v Chapter 1 Introduction: Nation of Immigrants at a Crossroads .................... 1 Chapter 2 Judicial Authority Shifted to Immigration Officers ...................... 7 Chapter 3 Expanded Deportation Grounds: Punishment That Does Not Fit the Crime .................................... 23 Chapter 4 No Second Chances: Elimination of Discretionary Relief ........... 33 Chapter 5 Retroactivity ................................................................................... 45 Chapter 6 Restricted Access to Counsel ........................................................ 53 Chapter 7 Excessive Use of Detention .......................................................... 59 Chapter 8 Bars to Judicial Review ................................................................. 73 Chapter 9 Civil Rights Implications of Immigration Enforcement .............. 83 Chapter 10 The 1996 Laws in the Post-9/11 World ...................................... 103 Findings and Recommendations .......................................................................... 109 Appendices Selected Post-1996 Changes to Immigration Laws Selected Key Changes Made in 1996 to Immigration Laws Governing Detention, Removal and Discretionary Relief...................... 117 Changes Made to Immigration Law Definition of “Aggravated Felony” ................................................................................ 123 Glossary of Immigration Terms ....................................................................... 127 Endnotes ................................................................................................................ 129 American Justice Through Immigrants’ Eyes ii ACKNOWLEDGMENTS The development and production of this report was a collaborative effort, enriched by the guidance, expertise, and generous allocations of time provided by many individuals within both the American Bar Association (ABA) and Leadership Conference on Civil Rights Education Fund (LCCREF) and their respective communities. The unique collaboration between the ABA and the LCCREF is an ideal one in that it provides an ideal combination of perspectives on the problems created by the 1996 immigration reforms, from both a purely legal and a civil and human rights perspective. The Ford Foundation and the Open Society Institute deserve special thanks for recognizing the need for this publication and responding with the critical financial support to bring it to fruition. We are especially grateful to Ford program officer Taryn Higashi as well as to Antonio Maciel, former director of grant making and program development for the Open Society Institute. Members of the ABA Commission on Immigration Policy, Practice and Pro Bono, LCCR Executive Director Wade Henderson and LCCREF Executive Director Karen McGill Lawson also merit special mention for lending their valuable time and contributing critical advice and insights at each stage. Sincere gratitude goes to the staff of the ABA Commission. Deep appreciation goes to former ABA staff director Carol L. Wolchok and former staff lawyers Alison Brown and Marisa S. Cianciarulo. Their considerable talents and steadfast dedication to this undertaking have produced an authoritative report that offers a comprehensive picture and analysis of the 1996 immigration laws and the broad ramifications these laws continue to have today. Alison Brown deserves recognition for researching and writing much of the first draft, and providing professional insights and expertise. Marisa Cianciarulo also provided immeasurable assistance - and hours – updating and revising the report as national events and policy changes evolved, and moving the project through the final stages of editing. Sonia Arce, Elizabeth Yang and Elissa Lichtenstein helped with many details and provided assistance coordinating the layout, printing, distribution and other logistics. Carol Wolchok deserves acknowledgment for authoring several significant chapters, editing, and overall coordination of the project. LCCREF attorney Rob Randhava deserves recognition for his extensive contributions on behalf of the LCCREF, including technical assistance and research in response to legislative and judicial developments, authorship of several portions of the report, and the creation of the authoritative chart comparing provisions of the immigration law before and after 1996. Bob Sakaniwa, formerly an attorney with the LCCREF, also made numerous contributions to the report during the early stages of its production. Other LCCREF staff contributed at the publication stage, including Corrine Yu, LCCREF Director of Education, Lisa Haywood, Office Manager, and Administrative Assistants Connie Denard and Charlotte Irving. Special thanks also go to the numerous practicing immigration lawyers, legal assistance organizations and family members, too many to mention individually, who took time to share information about clients and relatives who were affected by the 1996 laws and to provide updates as their cases progressed. Additionally, a number of experts on immigration law and related fields gave generously of their time and expertise by reviewing drafts of the report and providing invaluable feedback that contributed greatly to the final product. They include members and liaisons of the ABA Commission on Immigration Gabrielle Buckley, Neil iii American Justice Through Immigrants’ Eyes Dornbaum, Karen Grisez, Hiroshi Motomura, Richard Pena, Pauline Weaver, and Ed Yohnka. In addition, Karen K. Narasaki and Katherine Newell-Bierman of the National Asian Pacific American Legal Consortium, Richard T. Foltin of the American Jewish Committee, and LCCREF President William L. Taylor reviewed the report and offered indispensable suggestions. We are grateful also to the many consultants, law clerks and other assistants who contributed to the research, drafting, editing, cite-checking and production of this report. Journalists Dick Kirsten and Bill Hogan provided editorial guidance in the early stages of development. Special thanks go to Julianne Donnelley, who researched and wrote the initial draft of the enforcement chapter; to Carla Pike, who reviewed the entire publication and updated citations to prepare the report for publication; to Christopher Muludiang, Edward Neufville, and Rosemarie Salguero for checking case profiles; to Laura Begun for updating facts and figures; to Kanda Calef for assisting with endnotes; and to Courtney McDermed, Cheryl Moralez, and Lourdes Guiribitey, who conducted field research and interviewed detainees to verify facts and compile case profiles. We also want to thank West Group for providing complimentary access to Westlaw. Finally, we want to express our profound gratitude to Kevin Sullivan and Mary Jordan, whose elegant foreword enriches this report by framing the issues in the larger historical context, and to acknowledge the continuing work and energy of numerous individuals, inside and outside of government, who continue to press for the better and fairer treatment of immigrants and refugees. iv FOREWORD The horrific September 11, 2001 terror attacks on New York City and Washington, DC fundamentally changed the way our nation of immigrants views itself. Shameful episodes of anti-immigrant violence immediately after the attacks grabbed most of the headlines. But the more significant shift in attitudes has played out more quietly in federal government offices where immigration policy is made. The United States government, acting on a new urgency to control immigration and American borders, has tightened an array of regulations that affect how people from other countries may enter or live in the United States. Those actions have been applauded by many Americans as tough measures for tough times. But critics in the United States and abroad have said Washington has gone too far, that it has abandoned the ideals upon which the country was founded, effectively blindfolding the Statue of Liberty. Chinese businessmen and college students from Jamaica wonder how hand-cuffing and strip-searching them makes America safer from Al Qaeda. Non-U.S. citizens, even those in the United States legally, are being removed from the country in record numbers, in many cases for the slightest infractions and often with little or no chance to appeal. In its efforts to control immigration, the U.S. government has sharpened the teeth of an already tough 1996 law that made it much easier for the