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Central American Asylum Seekers: Impact of 1996 Immigration Law

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Abstract:

In enacting the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (Division C of P.L. 104-208), Congress rewrote provisions in the Immigration and Nationality Act (INA) that pertain to the circumstances under which certain aliens subject to expulsion from the United States may become legal residents. How aliens are affected by these statutory changes is being played out most vividly in the cases of Central Americans who first came to seek asylum the United States in the 1980s. As many as 300,000 Nicaraguans, Salvadorans, and Guatemalans are potentially affected by these revisions.

The Attorney General has the discretionary authority under the INA to grant relief from deportation and adjustment of status to otherwise illegal aliens who meet a certain set of criteria. This avenue, formerly known as suspension of deportation, is now called cancellation of removal. In addition to changing the name, IIRIRA established tighter standards for obtaining this relief. IIRIRA also established a cap on the number who could receive cancellation of removal — 4,000 each fiscal year.

It appears that the Nicaraguans, Salvadorans, and Guatemalans were fleeing civil conflicts in their native countries throughout the 1980s. Nonetheless the Central Americans came as “illegal” immigrants crossing the southern U.S. border without proper documents; most were denied asylum and placed in deportation proceedings. Yet, policy decisions — notably the creation of the Nicaraguan Review Office in 1987 and an out-of-court settlement of the American Baptist Churches v. Thornburgh case in 1990 — enabled these otherwise deportable aliens to remain in the United States with employment authorizations.

A significant portion of the Central Americans affected by the IIRIRA revisions still have asylum cases pending and may obtain legal permanent residence by that avenue if they demonstrate a well-founded fear of persecution. The Attorney General also has the discretionary authority to grant blanket relief from deportation, but the discretionary forms of relief do not entail legal permanent residence.

There is considerable interest in this issue in the 105th Congress, and the Senate passed by a vote of 99 to 1 an amendment to provide relief for certain Central Americans to the D.C. appropriations bill (S.1156). Representatives Diaz-Balart (H.R. 2302) and Meek (H.R. 2442) also introduced bills. These bills were in keeping with Attorney General Janet Reno’s request that Congress enact legislation to “grandfather” the Central Americans under old procedures. Representative Lamar Smith, concerned that the “grandfather” proposal would amount to amnesty for thousands of Central Americans, introduced a more narrowly framed bill (H.R.
2533).

Compromise language was included in the District of Columbia appropriations bill (H.R. 2607, P.L. 105-100) that enables Nicaraguans and Cubans in the United States since 1995 to adjust to permanent resident status, and permits certain Salvadorans, Guatemalans, and nationals of the former Soviet Union and Eastern Bloc countries in the United States by 1990 to seek suspensions of deportation under the pre-1996 Act rules.