Go On, Beat It! We Really Mean It This Time!

As Congress works to curb illegal immigration, a new INS regulation targets aliens who are already here

This past week, while Congress was wheeling out its latest weapon in the ever-escalating fight to curb illegal immigration, an equally potent -- if far more obscure -- piece of ammunition was quietly making its debut in the red- tape-festooned halls of the United States Immigration and Naturalization Service (INS).

Under a severely underpublicized federal regulation initiated earlier this year, an immigration law loophole that once allowed potential deportees virtually unlimited appeals has been closed. The regulation carried a September 30 cutoff date for appeals filed by anyone for whom a deportation order had been issued prior to July 1, 1996. Those who failed to file by the deadline now have no right to have their cases reopened by the INS except under extreme circumstances -- such as political upheaval in their own country. Deportation orders issued after July 1 carry a 90-day deadline for appeal. All deportees will be forbidden to re-enter the United States for five years.

Even after the Immigration Reform Act ushered in an Ice Age of sorts in 1990, aliens for whom deportation orders were issued had been all but encouraged to flout the law. INS didn't have the manpower to enforce deportation verdicts; among illegals it was commonly believed that if a person could stay out of trouble for seven years, hold a job, support a family, and pay taxes, he stood a chance on appeal to persuade a judge to bestow legal residency status -- the first giant step toward U.S. citizenship. And if a person didn't succeed the first time, he could go underground again and reappeal a few years later.

Not any more.
The new deadlines were designed to end what Congress viewed as abuse of the immigration court system by the thousands who manage to remain in this country even after a judge signs an order requiring them to leave. But legal advocates complain that it isn't fair to suddenly issue a blanket regulation that bars valid appeals along with frivolous ones, especially after perpetuating the old system for so long. "Immigration judges sometimes make atrocious mistakes," says local immigration attorney Michael Ray, who time after time has filed appeals to undo such errors. "A Haitian woman tried to reopen a case a month ago but they sent her notice to the wrong address. They ordered her deported to Jamaica! A Nigerian was ordered deported to Nicaragua. If they can't file a motion to reopen their cases, what are they going to do?"

A spokeswoman for the Executive Office of Immigration Review (EOIR), the arm of the U.S. Department of Justice that runs the nation's immigration court system, defends the new measure. "The appeals could go on forever," Fran Mooney explains from EOIR headquarters in Fairfax, Virginia. "We were trying to get the caseload under control and close and finalize these cases. By limiting the period of time in which motions to reconsider or reopen are filed, and by providing a deadline to file appeals, you are streamlining the system."

The regulation was made official in July. Officials do not know how many people it affects, but Mooney says judges sign about 100,000 deportation orders each year. About 6700 were issued in Miami in 1995 alone.

While thousands of deportees have remained in the country under the old system, evidence of widespread abuse of the appeals process is flimsy at best, says Dan Kesselbrenner, director of the National Lawyers Guild in Boston. Indeed, asked by Congress to investigate such abuses, the U.S. Attorney General's Office issued a report in 1991 stating that multiple filings "constitute an extremely low percentage of the entire caseload." Moreover, current laws already "safeguard against abuse," the report continued.

Peggy Philbin, general counsel for the EOIR, argues that the report is broader in scope than the regulations. Further, she points out, the congressional order had nothing to do with the report. "The regulations exist independently of whatever conclusion came out of this report," she says. "Congress wanted to limit the time frame -- to address people coming in seven years later in hopes of getting relief."

The EOIR publicized its new edict by sending out 60,000 information packets to INS offices, members of the American Immigration Lawyers Association, and private groups that assist immigrants and refugees. Unfortunately, few immigrants actually have attorneys, and the private relief agencies are so overburdened that the vast majority of those affected by the regulation may not find out about it until it is too late. "There are so few agencies to handle these cases," says Joan Friedland, a lawyer at the Florida Immigrant Advocacy Center. "Most people in immigration court are unrepresented." Even if people are aware of the deadlines, they may still find it impossible to help themselves, Friedland predicts, adding, "How will they get someone to file a motion to reopen? That's complicated legal work, something very difficult to do without a lawyer."

Tammy Fox-Isicoff, another local attorney, has a client who immigrated with his family from Eastern Europe when he was ten years old. He was ordered deported when his mother's marriage to a U.S. citizen broke up almost a decade later, but he didn't know it at the time. While the rest of his family gained permanent residency through his mother's second marriage, he was no longer his mother's dependent and could not claim residency through her. "This kid, the oldest one in the family, was left out in the cold," Fox-Isicoff says. "He has an outstanding order of deportation."

Luckily, he has a lawyer who knew about the September 30 deadline. Otherwise he'd be banished to his mother's country, which is now foreign to him. "He doesn't speak the language," says his attorney. "All his relatives are in the United States."

Fox-Isicoff worries that many people like her client face deportation and don't even know about it. "Do you know how he found out he was illegal?" she asks incredulously. "He went to register for the navy."

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