Integrity Legal

Posts Tagged ‘IIRAIRA’

14th August 2010

This author recently came across the following information regarding petitions submitted to the Inter-American Commission on Human Rights. The following is a direct quotation from a press release from the Organization of American States distributed by the American Immigration Lawyers Association (AILA):

On December 27, 2002 and July 17, 2003, the Inter-American Commission on Human Rights (the “Inter-American Commission” or the “IACHR”) received petitions from the Center for Justice and International Law (CEJIL), the law firm of Gibbs Houston Pauw, and the Center for Human Rights and Justice (“the petitioners”) against the Government of the United States (“the State” or “United States”) on behalf of Wayne Smith and his children and Hugo Armendariz and his children, respectively, (hereinafter collectively the “alleged victims”) in relation to Mr. Smith and Mr. Armendariz’s deportation from the United States. According to the petitions, the State violated the alleged victims’ rights protected under Articles I (right to life, liberty and personal security), V (right  to private and family life), VI (right to family), VII (right to protection for mothers and children), IX (right to inviolability of the home), XVIII (right to fair trial) and XXVI (right to due process of law) of the American Declaration on the Rights and Duties of Man (the “American Declaration”).

Deportation, also referred to as removal, is the process whereby foreign national(s) residing or remaining temporarily in the United States, either lawfully or unlawfully, are sent back to their home country (or another country outside of the United states) usually following proceedings in which a tribunal adjudicates the legality of a foreign national’s presence in the United States. To quote the aforementioned press release further:

Regarding the merits of the case, the petitioners allege that Messrs. Smith and Armendariz, both of whom were legal permanent residents in the United States, were subjected to deportation without permitting them to present a meaningful defense in administrative and judicial courts, including the following alleged internationally-required consideration of humanitarian equities to deportation: the alleged victims’ length of legal residency in the United States; the alleged victims’ family ties in the United States; the potential hardship on the family members left behind in the United States; the alleged victims’ links with their countries of origin; the extent of the alleged victims’ rehabilitation and social contribution to the United States; any medical or psychological considerations; and the gravity of the alleged victims’ offense and the age when it was committed.

Lawful Permanent Residence (LPR) is a legal status in the United States also referred to as “Green Card” status. Those American Citizens married to a foreign national often seek a CR1 Visa or an IR1 Visa in order to obtain the benefits of lawful permanent residence for their foreign loved one(s). Under certain circumstances an alien present in the United States in lawful permanent resident status can be stripped of said status if they have committed certain “aggravated” criminal offenses or other acts which are deemed to be grounds for removal from the USA, or grounds of inadmissibility to the United States (if the LPR has been abroad and is seeking readmission to the USA or if State law allows activity which Federal law deems to be a legal grounds of inadmissibility) . To further quote the aforementioned press release:

In its response on the merits, the State asserts that under international law each sovereign nation has the right to establish reasonable, objective immigration laws that govern the circumstances under which non-citizens may reside in its country. From this principle, the State argues that the statutory scheme established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter “IIRIRA”) and the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”) is a reasonable exercise of sovereign authority to protect U.S. citizens and other non-citizens alike who reside in the United States. Under IIRIRA and AEDPA, a legal permanent resident who has been convicted of an “aggravated felony,” is deportable without the opportunity of receiving a waiver of deportation from an immigration or federal judge. In addition, the State asserts that the petitioners interpret the relevant articles under the American Declaration too expansively and that they fail to recognize the proviso in Article XXVIII of the American Declaration, which permits Member States under certain circumstances to curtail a person’s individual rights in order to preserve the rights and security of others. The State asserts that the mandatory deportation of a non-citizen convicted of an “aggravated felony” is such a circumstance.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) is a significant piece of Immigration legislation in that it changed some of the procedures relevant to removal. Specifically, expedited removal, a comparatively quick removal proceeding often conducted by Officers of the Customs and Border Protection Service (USCBP), was essentially created by the  provisions of the IIRAIRA. In recent years, some believe that deportation of “aggravated felons” in LPR status has increased, but that some of those removed from the USA have had certain due process rights violated in the course of their removal. The case in question seems to rely upon arguments based upon this supposition. To quote the aforementioned press release further:

After having reviewed the positions of the parties and their accompanying evidence, the IACHR concludes that the United States is responsible for violations of Wayne Smith and Hugo Armendariz’s rights protected under Articles V, VI, VII, XVIII, and XXVI of the American Declaration. The Inter-American Commission further concludes that it is well-recognized under international law that a Member State must provide non-citizen residents an opportunity to present a defense against deportation based on humanitarian and other considerations, such as the rights protected under Articles V, VI, and VII of the American Declaration. Each Member State’s administrative or judicial bodies, charged with reviewing deportation orders, must be permitted to give meaningful
consideration to a non-citizen resident’s defense, balance it against the State’s sovereign right to enforce reasonable, objective immigration policy, and provided effective relief from deportation if merited. The United States did not follow these international norms in the present case. The IACHR presents its recommendations to the State regarding these violations of the American Declaration.

One can speculate as to the ultimate result of the above decision by the IACHR as the above finding could have implications  in future removal proceedings as agents of the United States government as well as Immigration adjudicators may be required to provide future prospective deportees with an opportunity to form a defense strategy based upon humanitarian considerations. The exact nature of future defenses based upon humanitarian grounds remains to be seen, but this finding may place more rights in the hands of those foreign nationals in American removal proceedings.

For related information please see: I-601 waiver.

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7th November 2009

The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) has had ramifications that routinely affect immigrants and non-immigrant entrants attempting to enter the US even today. This legislation greatly changed United States Immigration law and procedure.  At the time, IIRIRA was intended to target illegal immigration to the USA. Unfortunately, many of the provisions contained in IIRIRAhave had a critical impact upon legal immigration to the US. This article will explain one of the major powers granted to Customs and Border Protection Officers under IIRIRA: Expedited Removal

When IIRAIRA was passed its provisions Amended section 235 of the Immigration and Nationality Act (INA) to allow for the expedited deportation of foreign nationals who could be deemed inadmissible under either section 212(a)(6)(C) (fraud or misrepresentation) or section 212(a)(7) (lack of documentation) of the INA. The provisions do not call for the decision to be subject to appeal and as a result, a foreign national subjected to expedited removal does not enjoy the same level of due process that most American Citizens take for granted.

If one is subjected to expedited removal, then that alien cannot gain admission to the USA for a period of 5 years. If the alien is subsequently expeditiously removed, then they will be inadmissible to the USA for 20 years. If an alien is subjected to expedited removal, it may be possible for the alien to reenter the USA within their period of inadmissibility, but the alien must first apply for advance permission to reenter the USA, which is akin to an I-601 waiver in that the advance permission must be granted before the alien will be given leave to reenter the country.

Expedited removal should be of particular interest to those seeking to bring their Thai fiancee or spouse to the US on a tourist visa. It is a common misconception that tourist visas can be used to bring a significant other to the US to marry and apply for adjustment of status. Firstly, the US tourist visa is not a dual intent travel document. A tourist visa is intended strictly for those with non-immgrant intent. Therefore, it is unlawful for a foreign fiancee to travel to the USA with undisclosed immigrant intent. That being said, as a practical matter this does happen.  The Customs and Border Protection (CBP) Service can use expedited removal to turn away those attempting to enter the US on a tourist visa if they suspect that the entrant has undisclosed immigrant intent pursuant to section 212(a)(7) of the INA.

This author, along with colleagues in Southeast Asia, has noticed a recent rise in the number of expedited removals of Thais initiated by CBP. In nearly every case, the Thai being removed was the significant other of a US citizen. The Thai nationals removed in these cases were traveling to the US on either a tourist visa or a student visa. Due to this seemingly new trend, it is now more imperative than ever for Thai fiancees and wives of Americans to use the proper K1 fiance visa, K3 marriage visa, or Immigrant visa to travel to the United States.

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