Recalling the Immigration Act of 1917 and Its Impact
Given the extensive news coverage and on-going, emotional outpouring over the so called “Dream Act.” it may come as a surprise that Congress addressed this very issue more than a century ago.
There has been much handwringing over proposed legislation to offer a path to citizenship for undocumented immigrants who were brought to the United States at a young age. For years, supporters have been calling on Congress to act.
It appears, however, that there is probably no need for extensive new legislation. Congress can make a minor amendment to the present law to guarantee that the equities of these people will be considered in the ordinary course of business currently conducted in the United States immigration courts.
It all stems back to February 5, 1917, when Congress provided suspension of deportation for aliens who had entered the United States without inspection in section 19(c) of the Immigration Act of 1917.
Under that Act, an alien who had entered the United States without inspection could avoid deportation by filing an application for suspension of deportation. If the application was granted, the applicant was awarded lawful permanent residence in the U.S. with a pathway to citizenship through naturalization.
In 1952, Congress re-enacted the provision known as Suspension of Deportation. (See section 244(a)(1) of the Immigration and Nationality Act of 1952 (the Act)). As in the original 1917 law, an alien granted suspension of deportation becomes a permanent resident with a pathway to citizenship through naturalization.
Specifically, to qualify for suspension of deportation the applicant had to prove:
1. the applicant had been continuously physically present in the United States for the last 7 years;
2. the applicant had been a person of good moral character for the same 7 year period; and
3. his/her deportation would result in extreme hardship to himself/herself or to his/her U.S. citizen or permanent resident spouse, children or parents.
Upon proving the three criterion described above the applicant was granted lawful permanent residence in the United States, which was the first step in the path to citizenship through naturalization.
On September 30, 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This legislation substituted a relief now known as "Cancellation of Removal" for the original Suspension of Deportation. See section 240A(b)(1) of the Act, as amended.
To qualify for Cancellation of Removal, (the modern version of suspension of deportation), an applicant must prove that:
1. the applicant has been continuously physically present in the United States for at least 10 years;
2. the applicant has been a person of good moral character for 10 years;
3. the applicant has not been convicted for certain offenses; and
4. the applicant's removal from the United States would result in exceptional and extremely unusual hardship to the applicant's United States citizen or lawful permanent resident spouse, parent, or child.
As you can see, in 1996 Congress made it more difficult for the ordinary applicant to qualify for relief by increasing the level of hardship needed to avoid removal (i.e. "exceptional and extremely unusual hardship" as opposed to "extreme hardship"). Congress also increased the number of years of physical presence needed by the applicant, and disqualified some persons with certain types of criminal convictions.
More importantly, however, is that for the purpose of assessing an alien's eligibility for Cancellation of Removal, an immigration judge currently cannot consider hardship to the applicant himself or herself, except to the extent that it indirectly causes hardship the qualifying relative – that is, the United States citizen or lawful permanent resident spouse, parent or child.
Under Suspension of Deportation provisions in the 1952 Act, hardship to the applicant himself or herself can be considered.
The IIRIRA 1996 amendments cut off the opportunity for the "Dream Act" class of aliens to present their equities for consideration when it substituted cancellation of removal for suspension of deportation. This is an opportunity that had existed in United States immigration law at least since 1917.
It seems that, by prohibiting consideration of personal hardship to cancellation of removal applicants in 1996, Congress disturbed the balance that had existed in United States immigration law, since the enactment of the Immigration Act of 1917. Apparently, it is this road block to formerly available relief from deportation that led to the perceived need for something like the proposed “Dream Act.”
Congress could, by slightly amending the criteria for cancellation of removal, permit immigration judges to consider the hardship to individual applicants themselves when assessing their eligibility for cancellation of removal.
Congress could also restore the original "extreme hardship" standard for that class of aliens, as was done for battered women and children. See section 240A(b)(2) of the Act.
As previously stated, anyone who qualifies for suspension of deportation or cancellation of removal would become lawful permanent residents for whom a path to citizenship already exists as it does for all lawful permanent residents (i.e. naturalization upon meeting all of the naturalization requirements).
Therefore, it is not necessary to provide for special treatment in a new body of law for a new class of aliens to create a new path to citizenship.
Also, a case by case approach to assessing eligibility and the exercise of discretion would better protect the interests of the United States (by ensuring that undesirable aliens are not admitted into the United States) as well as providing fundamental fairness to individual applicants.
Another statutory modification that would benefit potential Dream Act beneficiaries would be to designate a more current entry date for aliens to qualify for registry under section 249 of the current Immigration and Nationality Act (8 U.S.C. S 1259). Currently registry provisions apply to aliens who entered the United States prior to January 1, 1972. The requirements to qualify for registry do not include proof of any hardship; just good moral character, among other objective criteria.
Finally, currently only 4000 suspension of deportation and cancellation of removal applications in the aggregate can be granted in any fiscal year. See section 240A(e)(1) of the Act, as amended. Congress could increase the cap which usually is reached before the end of the fiscal year.
This approach might seem painfully slow for those who want immediate gratification, but it would not differ from some other immigration processes for legitimating immigration status; and it might not be less efficient than the process that arises from a new body of legislation.
Perhaps, dedicating more resources to a more robust and independent immigration court system and Department of Homeland Security adjudication function and jurisdiction would hasten the anticipated glacial pace of adjudications. For example, the former INS was given jurisdiction to adjudicate suspension of deportation applications under the Nicaraguan and Central American Relief Act. Formerly, adjudication of Suspension of Deportation applications had been exclusively within the jurisdiction of the immigration courts.
In a nut shell,
- Congress addressed the circumstances surrounding aliens now described as “Dreamers” (and their spouses, parents and children) more than 100 years ago in 1917, including a path to citizenship.
- The fix is simple (i.e. amend a few paragraphs in the present immigration law to restore the pre-existing path to citizenship that was cut off by enactment of IIRIRA in 1996 (which provides for a case by case adjudication of applications for cancellation of removal or suspension of deportation).
- The proposed “Dream Act” is nothing more than the re-invention of the wheel with regard to providing a way to legitimate the status of aliens who are in the United States without permission.
Food for thought . . .