Letter to Rep. Barney Frank Regarding H.R. 1452, the Family Reunification Act

Hon. Barney Frank
United States House of Representatives
Washington, DC 20510

Re: H.R. 1452, the Family Reunification Act

Dear Representative Frank:

The American Civil Liberties Union (ACLU), a non-profit, non-partisan organization of approximately 300,000 members, welcomes your leadership in authoring H.R. 1452, the Family Reunification Act.

The Family Reunification Act would give those legal permanent residents who have been convicted of certain criminal offenses, if they have been sentenced to less than five years in prison, the opportunity to apply to an Immigration Judge for a waiver of deportation. The Immigration Judge would then weigh the factors in the particular case and make a discretionary judgment whether the individual merited relief. For any conviction involving a violent offense, the Immigration Judge would have to certify that granting relief would pose no danger to persons or property.

We believe passage of the Family Reunification Act would be an important step in restoring fairness for legal immigrants. This modest measure should not be a partisan issue. There has been a widespread acknowledgement, across the political spectrum, that the 1996 immigration laws swept too broadly. These laws were interpreted to require automatic deportation of long-term, legal permanent residents whose positive contributions to our society - including military service, employment, and family ties - far outweighed a conviction, often years or decades old, that they had successfully put behind them.

Since 1996, institutions in our society - including courts, parole and pardon boards, and members of Congress - have reacted with dismay to the injustices of particular cases where the application of the 1996 laws was plainly out of all proportion to the offense. In 2000, supporters and opponents of the 1996 laws came together to agree on a basic principle of fairness - that the laws should not bar relief retroactively. The House passed that modest reform overwhelmingly, but it stalled in the Senate. Last year, in INS v. St. Cyr, 121 S. Ct. 2271 (2001), the Supreme Court added its voice to those who said the 1996 laws had been interpreted too harshly. Discretionary relief, the Court noted, had been available to long-term, legal residents who faced deportation for criminal offenses since at least 1917 and should not be denied retroactively. Id. at 2277, 2293.

As members consider whether to support H.R. 1452, we believe it is critical to account for what the legislation does, and, as important, what is does not do. The bill simply gives certain lawful permanent residents the opportunity to apply for discretionary relief from deportation, eliminates retroactive application of the 1996 laws altogether, and makes other modest reforms. We are mindful that some members of Congress are not interested in wholesale repeal of the 1996 laws, and, in particular, with restoration of judicial review. We are also mindful that some members of Congress are not interested in revisiting the debate over the USA PATRIOT Act, Pub. L. No. 107-56, or other detention powers the government has assumed by regulation or policy change in the name of fighting terrorism in the wake of the attacks of September 11, 2001. The Family Reunification Act is a narrow bill and does not address these issues. It will have NO EFFECT on the scope of judicial review or the Attorney General's detention powers.

Rather, the Family Reunification Act simply empowers the Attorney General further - this time, to exercise discretion - in those cases involving long-term, legal permanent residents where such discretion is plainly warranted. Despite the claims of some, the Family Reunification Act will not compel the release of "dangerous criminal aliens" - indeed, it will not compel the release of anyone at all. Rather, it will permit the release only of those lawful permanent residents who, after a bond hearing, establish they are not a risk of flight or a danger - and even then only for those who are eligible for relief. In this respect, the bill only partially addresses the injustice of section 236(c) of the Immigration and Nationality Act, the mandatory detention provision that three federal circuit courts have now said violates the Constitution. See Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002); Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002); Patel v. Zemski, 275 F.3d 299 (3d Cir. 2002).

Because of the Family Reunification Act's narrow focus, the ACLU strongly believes that a comprehensive rollback of the 1996 laws and further reforms of the USA PATRIOT Act and new immigration detention regulations and policies will be needed even if the bill is enacted. For this reason, ACLU strongly supports H.R. 3894, the Restoration of Fairness in Immigration Act of 2002, a broader immigration due process bill sponsored by Rep. John Conyers. Nevertheless, we welcome your leadership in introducing this more modest measure, which is attracting broad bipartisan support, and we look forward to working with you to ensure its swift enactment.

Sincerely,

Laura W. Murphy
Director, ACLU Washington Office

Timothy H. Edgar
ACLU Legislative Counsel

Cc: Members of the Judiciary Committee