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Central American Asylum Seekers: Impact of 1996 Immigration law

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In enacting the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, the US Congress rewrote provisions in the Immigration and Nationality Act that pertain to the circumstances under which certain foreign nationals subject to expulsion from the United States may be permitted to stay here as legal residents. Central Americans who first came to seek asylum the United States in the 1980s were especially affected by the 1996 law. For the most part, these Central Americans —fleeing civil conflicts in their native countries — came as “illegal” immigrants lacking proper documents. While most of these Central Americans were denied asylum and placed in deportation proceedings, policy decisions (including an out-of-court legal settlement) enabled these otherwise deportable aliens to remain in the United States with employment authorizations The report is organized into five sections: an overview of the asylum and cancellation of removal procedures; three sections describing the situations of the Nicaraguans, Salvadorans, and Guatemalans; and, finally a section discussing legislative issues.
Content may be subject to copyright.
CRS Report for Congress
Received through the CRS Web
97-810 EPW
Central American Asylum Seekers:
Impact of 1996 Immigration Law
Updated November 21, 1997
Ruth Ellen Wasem
Specialist in Social Legislation
Education and Public Welfare Division
Congressional Research Service ˜˜ The Library of Congress
Central American Asylum Seekers: Impact of 1996
Immigration Law
SUMMARY
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 105 Congress, and the Senate
th
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.
CONTENTS
Introduction ................................................... 1
Overview of Asylum and Cancellation of Removal ....................... 2
Asylum Process and Trends in the 1980s .......................... 2
Cancellation of Removal ...................................... 3
Nicaraguans .................................................... 5
Conditions in Nicaragua During the 1980s ......................... 5
Estimated Numbers of Nicaraguan Migrants ....................... 6
Policy Response to Nicaraguan Asylum Seekers .................... 7
Nicaraguan Review Program ............................... 7
Salvadorans .................................................... 9
Conditions in El Salvador during the 1980s ........................ 9
Estimated Numbers of Salvadoran Migrants ....................... 10
Policy Response to Salvadoran Asylum Seekers .................... 10
Guatemalans .................................................. 13
Conditions in Guatemala during the 1980s ........................ 13
Estimated Numbers of Guatemalan Migrants ...................... 14
Policy Response to Guatemalan Asylum Seekers ................... 14
Legislative Issues ............................................... 15
Policy Questions ........................................... 15
Should the 4,000-person annual limit on cancellation of removals be
waived or raised to accommodate the Central Americans? .... 15
Does the special situation of Central American asylum seekers warrant
legislation “legalizing” their immigration status? ............ 15
Should Congress enact legislation to “grandfather” the Central Americans
under the old suspension of deportation provisions? ......... 16
Legislation ................................................ 16
List of Figures
Figure 1. Top Asylum Seeking Countries, FY1981 to FY1991 ............. 2
Figure 2. Nicaraguan-Born Residents of the United States in 1990 by Period
of Arrival .............................................. 6
Figure 3. Salvadoran-Born Residents of the United States in 1990 by Period
of Arrival ............................................. 10
Figure 4. Guatemalan-Born Residents of the United States in 1990 by Period
of Arrival ............................................. 14
The other noteworthy group of asylum seekers affected by the 1996 law are the
1
Haitians who attempted to enter the United States following the military coup in September
1991. For the first 6 months after the coup, the Coast Guard took intercepted Haitians to the
U.S. naval base at Guantanamo, Cuba, and the Immigration and Naturalization Service (INS)
pre-screened them for plausible asylum claims. INS paroled approximately 10,490 Haitians
into the United States before President George Bush issued an executive order in May 1992
to forcibly return all intercepted Haitians. The Haitians, however, have not been in the
United States long enough to petition for suspension of deportation, and many still have
asylum claims pending.
Central American Asylum Seekers: Impact of
1996 Immigration Law
Introduction
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 be permitted to stay
here as 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. For the most part, these Central Americans
1
fleeing civil conflicts in their native countries — came as “illegal” immigrants
lacking proper documents. While most of these Central Americans were denied
asylum and placed in deportation proceedings, policy decisions (including an out-of-
court legal settlement) enabled these otherwise deportable aliens to remain in the
United States with employment authorizations.
There was considerable interest in this issue in the first session of the 105th
Congress. Attorney General Janet Reno had requested that Congress enact legislation
on the matter, and Senators Connie Mack, Bob Graham, and Ted Kennedy
introduced legislation (S. 1076) as did Representative Lincoln Diaz-Balart (H.R.
2302) addressing her concerns. The chair of the House Committee on the Judiciary
Subcommittee on Immigration and Claims, Representative Lamar Smith reportedly
was skeptical of assurances that the administration’s proposal would not result in
amnesty for thousands of Central Americans. Smith introduced his own bill (H.R.
2533) and was reportedly involved in crafting the compromise language with Mack
and Diaz-Balart, among others, that was ultimately included in the District of
Columbia appropriations bill, H.R. 2607 as passed. President Clinton signed H.R.
2607 on November 19, 1997.
The report is organized into five sections: an overview of the asylum and
cancellation of removal procedures; three sections describing the situations of the
Figure 1. Top Asylum Seeking Countries, FY1981 to
FY1991*
*Data series ends in March 1991 when new regulations went into effect.
10 and 1/2 year total of asylum applicants is 501,457.
El Salvador 25%
Nicaragua 25%
Cuba 14%
All Others 14% Guatemala 8%
Iran 7%
Poland 3%
Honduras 2%
Ethiopia 2%
Source: CRS analysis of INS data.
CRS-2
At the close of the decade, the Bush Administration made regulatory reforms to
2
asylum procedures that, among other things, created an asylum corps in INS with special
training and resources in country conditions and ended the State Department’s role
providing advisory opinion on cases. The Clinton Administration made further reforms in
1995, notably regarding work authorizations and time lines. IIRIRA codified many of these
regulatory changes as well as making further changes that tightened up the asylum process.
Since the aliens in question sought asylum under the old rules, this discussion is based on
the procedures in place then.
Nicaraguans, Salvadorans, and Guatemalans; and, finally a section discussing
legislative issues.
Overview of Asylum and Cancellation of Removal
Asylum Process and Trends in the 1980s2
To receive asylum, aliens must show a well-founded fear that if returned home,
they will be persecuted based upon one of five characteristics: race, religion,
nationality, membership in a particular social group, or political opinion. An alien
may apply for asylum with INS anytime after arrival into the country or may seek
asylum before an Executive Office for Immigration Review (EOIR) immigration
judge during exclusion or deportation proceedings. INS may hold asylum seekers
without legal immigration documents in detention or may release them under their
own recognizance while the case is pending. The release criteria include whether the
asylum claim is frivolous (i.e., manifestly unfounded or abusive) and whether the
alien may pose a danger to security.
The INA makes
clear that the Attorney
General can exercise
discretion in the
granting of asylum.
Asylees who
participated in the
persecution of other
people are excluded
from admission. The
regulations state
conditions for
mandatory denials,
including when: the
alien has been
convicted of a serious
crime and is a danger
to the community; the alien has been firmly resettled in another country; or there are
+reasonable grounds for regarding the alien as a danger to national security.
CRS-3
Since the passage of the Refugee Act, the INS Statistical Analysis Division has
3
collected data on the asylum cases handled by the INS district directors. The analysis that
follows uses INS district level data and, thus, does not reflect statistics from cases before
immigration judges in the Justice Department’s Executive Office of Immigration Review.
One example is: U.S. Department of Justice, Immigration and Naturalization Service,
4
Fact Sheet, Phase Out of Nicaraguan Review Program, July 27, 1995.
Foreign policy considerations as well as the practical reality of traveling from
the country of origin to the United States are among the factors that bear upon who
among the millions of persecuted people in the world — ends up seeking asylum
in the United States. As Figure 1 depicts, most of the asylum seekers in the 1980s
fled countries in this hemisphere that had repressive governments or have
experienced political turmoil. In some instances a history of friendly relations,
educational exchanges, and other ties with the United States, prompted many
Iranians and Ethiopians, for example — to seek asylum in this country after
governments hostile to the United States came to power.
Central Americans constituted the overwhelming portion (about two-thirds) of
asylum seekers to the United States in the 1980s. Indeed, Salvadoran and
3
Nicaraguan asylum applicants totaled over 252,000 and made up half of all aliens
who applied for asylum with the INS from FY1981 through part of FY1991. Since
the data reported here are limited to asylum seekers who reported to the INS to
request asylum, these numbers are thought to understate the number of Central
Americans estimated to have fled to the United States in the 1980s.
Many of the Central Americans who sought asylum in the United States in the
1980s remain here, though most of them were denied asylum. For circumstances
unique to the particular countries, certain undocumented migrants from El Salvador,
Guatemala, and Nicaragua were permitted to stay and work in the United States.
Many of these Central Americans hoped to obtain a suspension of deportation.
Indeed, immigration lawyers and U.S. government officials encouraged them to do
so when they had exhausted their asylum appeals.4
Cancellation of Removal
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. Generally, aliens seeking this type of relief are those who
have established “deep roots” in the United States and who can demonstrate good
moral character as well as hardship to their family here if they are returned to their
native country. Decisions to grant relief are made on a case-by-case basis. This
avenue, formerly known as suspension of deportation, is now called cancellation of
removal as a result of IIRIRA.
In addition to changing the name, IIRIRA established tighter standards for
obtaining this relief. The hardship threshold previously was “extreme” hardship to
the alien, the alien’s citizen or permanent resident alien spouse, children or parent.
Now the language states “exceptional and extremely unusual hardship.” The length
of time the alien had to be physically residing in the United States was increased
CRS-4
For a fuller discussion of the provisions, see CRS Report 97-606, Suspension of
5
Deportation: Tighter Standards for Canceling Removal, by Larry M. Eig and CRS Report
97-702, Suspension of Deportation: Effect of § 309(c)(5) of IIRIRA on Pending Deportation
Cases, by Larry M. Eig and Andre O. Mander.
In re N-J-B, Int. Dec. 3309 (BIA, Feb. 1997).
6
Speaker Urges U.S. Reprieve for Nicaraguan Immigrants, Washington Post, June 8,
7
1997.
In a
ddition, two U.S. district courts have questioned how the 4,000 cap is to b
e
8
applied and whether the “stop-time” rules are retroactive. Barahona-Gomez v. Reno, No. C-
97-0895 CW (N.D. Cal) and Tefel v. Reno, No. 97-0805-CIV-King (S.D. Fla).
from 7 to 10 years. Moreover, the time span used to calculate the 10 year physical
presence requirement now terminates when the alien receives a notice to appear (the
document that initiates removal proceedings) or when the alien commits a serious
crime. IIRIRA also established for the first time limits on the number of people who
could receive cancellation of removal — 4,000 each fiscal year.
5
The implications of these changes — and the court decisions affecting the
implementation of these statutory changes — make many of the Central Americans
ineligible for cancellation of removal. Most notably, the Board of Immigration
Appeals (BIA) ruled that time requirements conditioned on the “notice to appear” in
the IIRIRA applies to “orders to show cause” (i.e., deportation proceedings) under
the old law. Most of the Central Americans had received deportation orders before
6
they had lived in the United States the requisite number of years. Moreover, the
Central Americans who may wish to seek cancellation of removal number in the
hundreds of thousands, far exceeding the numerical limit of 4,000 set by IIRIRA.
Some Members of Congress who supported these changes may not have realized
the new provisions would be applied retroactively. The Speaker of the House, Newt
Gingrich, stated that Nicaraguans should be afforded special relief and that the new
law should not be retroactive. Others, including members of the Hispanic Caucus,
7
have requested that President Clinton and Attorney General Janet Reno take action
to prevent the deportation of certain Salvadorans and Guatemalans as well as
Nicaraguans. Attorney General Reno responded on July 10, 1997, by vacating the
BIA decision and sending legislative language to Congress to amend certain
provisions on cancellation of removal.8
It bears noting that 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 can demonstrate a well-founded fear of persecution.
The sheer number of years that have passed since many of them first fled, however,
may make it harder to present documentary evidence, and reported improvements
in country conditions may make it more difficult for them to make their cases. The
Attorney General also has the discretionary authority to grant blanket relief from
deportation, such as “deferred enforced departure” or “temporary protected status”
(the later is more appropriate if conditions worsen in any of the countries), but these
discretionary forms of relief do not entail legal permanent residence.
CRS-5
Nicaragua: A Country Study, edited by Tim L. Merril; CRS Report 87-855,
9
Nicaragua: An Overview of U.S. Policy, by Mark P. Sullivan; CRS Review, The U.S.
Response: the Problem of Nicaragua, by Nina M. Serafino, Apr. 1988; CRS Review,
Nicaragua: Possibilities for Mutual Accommodation?, by Nina M. Serafino; CRS Report 91-
183, Latin America: An Overview of U.S. Policy Challenges in 1991, by Nina M. Serafino,
K. Larry Storrs, and Maureen Taft-Morales.
The establishment of the Sandinista movement can be traced back to 1961 by a group
10
of men who were Marxist student activists in the late 1950s.
A review of the circumstances that resulted in so many Nicaraguans,
Salvadorans, and Guatemalans living in the United States without proper
documentation — yet legally working and ultimately being encouraged to seek
suspension of deportation — follows.
Nicaraguans
Conditions in Nicaragua During the 1980s9
For almost 50 years, the Somoza family ruled as dictators in Nicaragua. In
January 1978, the editor of La Prensa who was a vocal critic of Anastasio Somoza
Debayle, Pedro Joaquin Chamorro, was assassinated, and Somoza’s son as well as
National Guard members were implicated in the murder. The United States
suspended all military assistance in response to the murder. In 1979, formal
unification of the Sandinista guerillas occurred, heavy fighting broke out across the
10
country, and within a few months a five-member revolutionary junta assumed power.
Somoza fled first to Miami, then to Paraguay where he was later assassinated.
Although the United States initially gave economic (but not military) aid to the
Sandinista government, the United States suspended all aid to Nicaragua in January
1981. By the end of the year the United States was supporting groups trying to
overthrow the Sandinistas, working with former National Guard members in
Honduras. These U.S.-backed Nicaraguans in Honduras ultimately formed the
Contras.
In 1984, about 75% of registered voters participated in elections, and the
Sandinistas won with over 60% of the vote. Within a few months, the Congress
banned military aid to the Contras. The Reagan Administration then ordered a total
embargo of U.S. trade with Nicaragua. The Sandinista government subsequently
suspended all civil liberties, and the Congress resumed aid to the Contras. The
Nicaraguan economy deteriorated, both from the embargo and from the diversion of
money from economic development to defense against the Contras.
At the initiation of Costa Rican President Oscar Arias Sanchez, a peace process
began in 1987 and an accord was reached in 1989. However, in 1988, hurricane Joan
had struck, leaving 432 people dead, 230,000 homeless and $1 billion in damages.
By then Nicaragua was bankrupt. When elections were held in 1990, Violeta
Chamorro (widow of the slain La Prensa editor) — with a campaign calling for
Figure 2. Nicaraguan-Born Residents of the
United States in 1990 by Period of Arrival
CRS presentation of data from U.S. Bureau of Census, 1990 Census of Population (CP-3-1).
43.923
15.755 23.968 29.601
55.412
Pre-1980 1980-81 1982-84 1985-86 1987-90
0
20
40
60
80
100
120
140
Thousands
Non-Citizen Naturalized
CRS-6
This number is based on a sample of those responding to the 1990 census, which
11
some demographers maintain undercounts immigrant populations.
CRS Report 93-233, Asylum Seekers: Haitians in Comparative Context, by Ruth
12
Ellen Wasem.
peace and prosperity — defeated incumbent President and Sandinista leader Daniel
Ortega with 55% of the vote.
Estimated Numbers of Nicaraguan Migrants
According to the 1990 Census of Households, there were 168,659 residents of
the United States who were born in Nicaragua. Almost three-fourths of these
11
Nicaraguan-born residents reported that they had come after 1980. Data on legal
immigration from INS indicates that 44,139 Nicaraguans immigrated from FY1981
through FY1990, including about 15,000 who adjusted status through the legalization
provisions of the Immigration Reform and Control Act (IRCA) of 1986 which
required evidence that the
alien had been residing in
the United States prior to
1982. The 1990 Census of
Households, however,
reported that 124,736
Nicaraguans migrated to
the United States during
that period. While a
portion of these differences
in numbers may be due to
methodological differences
in how these two federal
agencies collected data
and how people respond to
these agencies’ data
collection efforts — it is
reasonable to assume that many of the Nicaraguans who migrated during the 1980s
came outside of the legal immigration system, and thus are undocumented
immigrants commonly referred to as “illegal aliens.”
Most Nicaraguans who came to the United States in the 1980s may best be
described as asylum seekers. From FY1981 to mid-FY1991, about 126,000
Nicaraguans applied for asylum, making them 25% of all asylum applicants during
that period. Only the Salvadorans matched the Nicaraguans in terms of numbers
applying for asylum at that time. The apex of Nicaraguan migration occurred when
almost 18,000 Nicaraguans, along with about 19,000 other Central Americans,
crossed the border at Brownsville, Texas, from June 1988 through March 1989. This
period of mass asylum is surpassed only by the Mariel boatlift in 1980 in terms of
sheer numbers of asylum seekers arriving in the United States over several months.12
CRS-7
This percentage is reportedly skewed upward because the INS District Director who
13
served in Miami at that time maintained he did not have the staff resources to process
asylum denials.
Statement of Michael G. Kozak, Acting Assistant Secretary, Department of State,
14
before the Senate Committee on the Judiciary Subcommittee on Immigration and Refugee
Affairs, June 21, 1989.
CRS Issue Brief 87205, Immigration Status of Salvadorans and Nicaraguans, by
15
Ruth Ellen Wasem; and CRS Report 91-530, Asylum and Temporary Status Under U.S.
Immigration Law, by Ruth Ellen Wasem.
The Cardoza-Fonseca ruling (480 U.S. 421 (1987)) held that the “well-founded fear”
16
of persecution standard for obtaining asylum does not require that the applicant show a
“clear probability” of persecution, as INS had been requiring; rather a showing of a
reasonable possibility of persecution was adequate.
Policy Response to Nicaraguan Asylum Seekers
As the Somoza government was losing control in 1979, some Nicaraguans came
to the United States as tourists on B-2 nonimmigrant visas. When Somoza fell to
the Sandinistas, they were granted “extended voluntary departure” (EVD) under the
discretionary authority of the Attorney General. Although their EVD status only
lasted from July 3, 1979 to September 28, 1980, there appears to have been little
effort to deport those who stayed beyond that period. In addition to applying for
asylum, they would have been eligible to legalize their immigration status under
provisions in the IRCA, but it is not clear that all of them took advantage of this
opportunity.
During the 1980s, about 13,200 Nicaraguan asylum cases were approved (and
are included in the legal immigrant numbers cited above). For several years, the
Nicaraguans had a high asylum approval rate — peaking at 84% in FY1987. A
13
spokesman for the State Department, which at that time offered an advisory opinion
on asylum cases, stated: “The Sandinistas, however, have developed Nicaragua’s
legal system, mass organizations, and armed forces into instruments of repression.
The State Security Directorate in the Ministry of Interior has institutionalized human
rights abuse with the national police system and the security prisons.” As the
14
decade drew to a close, however, their asylum approval rate fell. The denials were
based on the view that many of these Nicaraguans were now fleeing the depressed
economic conditions or were coming to join relatives. By FY1990, asylum approval
rates for Nicaraguans dropped to 19%.15
Nicaraguan Review Program. Although most aliens denied asylum by INS
were then bound over to the Executive Office for Immigration Review (EOIR) for
deportation proceedings, the Nicaraguans denied asylum received unique treatment.
Former Attorney General Edwin Meese established the Nicaraguan Review Program
(NRP) in July 1987 to consider the cases of Nicaraguans denied asylum by INS. In
part a response to the U.S. Supreme Court’s Cardoza-Fonseca decision, Meese
issued a statement that encouraged Nicaraguans, especially those denied asylum prior
to the Cardoza-Fonseca ruling in March 1987, to re-apply for asylum. He also
16
instructed INS to facilitate the processing of Nicaraguans’ claims, to advertise asylum
CRS-8
By the end of the decade, as a result of judicial rulings, it became standard practice
17
to issue employment authorizations to all asylum applicants. The Clinton Administration
issued regulatory changes to end this practice in 1995, maintaining it created a magnet for
asylum abuses, and Congress codified this change in IIRIRA.
U.S. Department of Justice, Immigration and Naturalization Service, Fact Sheet,
18
Phase Out of Nicaraguan Review Program, July 27, 1995.
procedures in communities with concentrations of Nicaraguans, and to issue work
permits to Nicaraguans as soon as they registered with INS.17
The Reagan and Bush Administrations were reluctant to deport anyone to
Nicaragua as long as the Sandinistas were in power, and reportedly only Nicaraguans
known to be criminal aliens were likely to be returned. Although INS denied the
asylum claims of over 31,000 Nicaraguans from FY1981 through FY1989, it
deported only about 750 Nicaraguans. In February 1990 when Violetta Chamorro
was elected President of Nicaragua, she asked President Bush to grant extended
voluntary departure (EVD) to Nicaraguans in the United States. While the
Administration did not do so, the Nicaraguan Review Program continued, leading
some to conclude Nicaraguans had de facto EVD.
Then, in December 1993 Attorney General Janet Reno announced the
Nicaraguan Review Program was no longer needed because Nicaragua had
experienced 3 years with a democratically elected government and, she maintained,
the U.S. asylum procedures had improved. “With the discontinuation of the NRP,
Nicaraguans are now subject to the same procedures and appeals of asylum
adjudication as individuals from other countries.” The fact sheet INS distributed to
explain the phase out of the NRP also described the application process for
suspension of deportation.18
As the NRP was beginning to be phased out in June 1995, the INS estimated
that there were 33,914 Nicaraguans in deportation or exclusion hearings and 10,950
with final orders of deportation. Meanwhile, 20,760 Nicaraguan asylum cases were
still pending in the INS backlogs as of September 30, 1996 (most recent year
available). Groups representing the Nicaraguans in the current legal efforts not to
keep IIRIRA from being applied retroactively report that about 40,000 Nicaraguans
are subject to removal.
CRS-9
El Salvador: A Country Study, edited by Richard A. Haggerty, Nov. 1988; CRS
19
Review, El Salvador: Prospects for Peace and Political Stability, by Mark P. Sullivan, Apr.
1988; CRS Review, El Salvador: New Challenges for U.S. Policy, by K. Larry Storrs, Feb.
1989; CRS Report 91-183, Latin America: An Overview of U.S. Policy Challenges in 1991,
by Nina M. Serafino, K. Larry Storrs, and Maureen Taft-Morales.
In October 1987, about 4,500 Salvadorans in the Honduran refugee camp of Mesa
20
Grande announced their plan to return to their villages in El Salvador. Salvadoran officials
feared this was part of a plan by the leftist guerrillas to rebuild popular support and initially
opposed the repatriation. The return did occur, however, and the government closely
monitored the border crossing. At that time the UNHCR indicated there were about 20,700
Salvadorans in Honduran refugee camps.
Salvadorans
Conditions in El Salvador during the 1980s19
As the 1970s were drawing to an end, the government of El Salvador was
increasingly repressive, and insurgencies were springing up on both the left and the
right. Political violence abounded, and when the United States conditioned the
receipt of aid upon the improvement of human rights, the government of Colonel
Arturo Armando Molina refused the aid. Fearful that El Salvador would go the way
of Nicaragua, there was what was characterized at the time as a “reformist coup” in
1979. The United States responded to the efforts at reform with an economic aid
package.
Over the course of 1979-1980, however, El Salvador had a series of four ruling
juntas, and the political violence continued. The violence peaked in March of 1980
when Catholic Archbishop Oscar Romero was murdered, allegedly by right-wing
extremists. Later that year, four church women from the United States were also
murdered, sparking public outcry in the United States and prompting President
Jimmy Carter to suspend military aid to the junta. Nonetheless, when the left-wing
guerrillas began their offensive in January of 1981, Carter immediately approved
“nonlethal” military aid, and when Ronald Reagan became President a few weeks
later he stressed the need to further shore up El Salvador against communism.
Throughout the 1980s, El Salvador moved toward democracy. In March of
1982, elections were held for a legislative assembly which then wrote a new
constitution and prepared for direct presidential elections in 1984. When Jose
Napoleon Duarte was elected in 1984, he became the first constitutionally elected
President of El Salvador in half a century. Legislative elections were held in 1985
and 1988, and presidential elections in 1989.
The political violence and civil conflict nevertheless continued during the
1980s. It was estimated that by 1988 63,000 people had been killed by a combination
of leftist guerrillas, right-wing death squads and government military actions. At
least one-quarter of the population was uprooted or displaced by the conflicts. The
20
civil strife also took its toll on the economy. By 1988, unemployment hovered at
50%, and 75% of the population was in poverty. When right-wing candidate Alfredo
Figure 3. Salvadoran-Born Residents of the
United States in 1990 by Period of Arrival
CRS presentation of data from U.S. Bureau of Census, 1990 Census of Population (CP-3-1).
115.437 107.122
78.215
66.162
98.497
Pre-1980 1980-81 1982-84 1985-86 1987-90
0
20
40
60
80
100
120
140
Thousands
Non-Citizen Naturalized
CRS-10
Cristiani won the presidential election in 1989, he promised to revive the economy
and negotiate a peace accord with the guerrillas.
The situation, however, deteriorated in late 1989 as polarization and violence
escalated again. The guerrillas launched an offensive. At that same time, six
prominent Jesuit priests with ties to the United States were assassinated, and
members of the military — including officers — were charged in the murder. In
January 1991, guerrillas admitted shooting down a helicopter with U.S. military
advisors, then killing two who had survived the crash.
Estimated Numbers of Salvadoran Migrants
There were 465,433 persons residing in the United States in 1990 who reported
that they had been born in El Salvador. Only 15% indicated that they had become
U.S. citizens. Three-
fourths of these
Salvadoran-born residents
reported that they had
come after 1980 (Figure
3). Data on legal
immigration from INS
indicate that 213,539
Salvadorans became legal
permanent residents from
FY1981 through FY1990;
however, 136,073 of these
had adjusted status as a
result of IRCA
(documenting that they
had been residing in the
United States illegally since before 1982). The 1990 Census of Households reports
that 349,996 Salvadorans migrated to the United States during that period.
As with the Nicaraguans, it is reasonable to assume that many of the
Salvadorans who migrated during the 1980s came outside of the legal immigration
system, and though they may be asylum seekers, they also are considered “illegal
aliens.” From FY1981 to mid- FY1991, over 126,300 Salvadorans applied for
asylum, making them one-quarter of all asylum applicants during that period (Figure
1). There were more asylum applicants from El Salvador than any other country,
though Nicaragua was a close second.
Policy Response to Salvadoran Asylum Seekers
Throughout the 1980s, Salvadorans had a low asylum approval rate — typically
2-3%. The State Department argued that the primary motivation for Salvadoran
migration to the United States was economic. It pointed to the overpopulation,
poverty, and unemployment in El Salvador, and the longstanding policy of that nation
to encourage the emigration of its populace to relieve overcrowded conditions.
“Generalized conditions of poverty and civil unrest do not entitle people who leave
CRS-11
National Journal, Jan. 18, 1986, p.151.
21
National Journal, Jan. 18, 1986, p.150.
22
In 1987, the Salvadoran government estimated that the remittances totaled $350
23
million to $600 million annually. Now, a decade later, the Salvadoran government estimates
the remittances to be worth $1 billion annually.
their homelands to settle here,” then-Assistant Secretary of State Elliott Abrams
explained during congressional hearings in 1985. Abrams went on to say that if the
asylum standard was not based upon individualized cases of persecution, but rather
on generalized violence, “half the 100 million people living between the Rio Grande
and Panama would meet it, as would hundreds of millions more people living in
other parts of the earth.”21
Unlike Nicaraguans, Salvadorans who were unsuccessful in obtaining asylum
were often deported. When Amnesty International documented the case of Santana
Chirino Amaya, deported back to San Salvador and subsequently found decapitated,
human rights groups at home and abroad expressed outrage. The United Nations
High Commissioner for Refugees concluded in a 1981 investigation that the U.S. had
followed a “systematic practice” of returning Salvadorans regardless of the merits of
their asylum claims. Despite the international criticism, INS deported several
thousand Salvadorans each year during the decade, totaling about 26,280 from
FY1981 through FY1989.
Early in 1982, the Southside Presbyterian Church in Tucson, Arizona, declared
itself a public sanctuary for Salvadorans fleeing the civil strife. This action rippled
around the country, beginning what became known as the “sanctuary movement.
Not only did congregations of various religious beliefs adopt this position, but elected
bodies of dozens of towns and cities across the United States voted to become
sanctuaries, stating they would defy efforts by INS to deport Salvadorans who sought
refuge in their communities. Subsequently, the Government began prosecuting
22
leaders of the sanctuary movement, and the Reverend John Fife of Southside
Presbyterian Church and several other religious leaders were convicted for their role
in violating federal immigration law.
When Jose Napoleon Duarte became President of El Salvador, he requested that
the United States not return the Salvadorans. Duarte based his position not on human
rights grounds, but on economic considerations. He cited both the country’s
dependence on the remittances the Salvadorans working in the United States send
back to El Salvador and the inability of the faltering Salvadoran economy to absorb
any more workers. In April 1987, the State Department reversed its longstanding
23
position in response to Duarte’s request and urged the Attorney General to give the
Salvadorans extended voluntary departure (EVD) as had been done in the past for
groups such as the Poles, Nicaraguans, Iranians and Vietnamese. Nonetheless,
Attorney General Meese held firm to the Administration position that such action
was unwarranted and would have created a magnet for further flows of
undocumented Salvadorans.
CRS-12
The TPS provisions permit the Attorney General to grant time-limited blanket relief
24
from deportation to nationals of countries determined by the following conditions: physical
danger due to armed conflict; environmental disaster; or U.S. national interest, considering
international, humanitarian, and immigration concerns. §244A(h) of INA.
The Administration also agreed no longer to have the State Department offer an
25
advisory opinion on asylum claims, since it was perceived that the State Department was
exercising a veto over claims from certain countries.
Meanwhile, some Members of Congress were growing concerned about the
treatment of Salvadorans who were returned to their native country and the Attorney
General’s refusal to grant them EVD. Beginning in the 98 Congress (1983-1984),
th
legislation was introduced to grant a temporary stay of deportation to Salvadorans.
Nicaraguans were added to the bills in the 99 Congress, and the House passed the
th
measure. During the 100 Congress, the House again passed legislation granting
th
stays of deportation to Salvadorans and Nicaraguans. Finally, the 101 Congress
st
included in the Immigration Act of 1990 (P.L. 101-649) language creating new
provisions in INA for temporary protected status (TPS), and granting TPS to
Salvadorans for 18 months.
24
The courts also began weighing in on INS treatment of Salvadorans. In 1982,
U.S. District Judge David V. Kenyon issued a preliminary injunction which enjoined
INS from deporting any Salvadoran without fully informing them of their rights,
including the right to an attorney and the right to apply for asylum. When Judge
Kenyon granted a petition for a permanent injunction in 1988, he ordered the INS not
to use coercion to keep the Salvadorans from applying for asylum.
American Baptist Churches (ABC) court case. Legal action on this issue
culminated in the class action suit brought against the Attorney General (Richard
Thornburgh at the time of settlement) by the American Baptist Churches and others
on behalf of Salvadoran and Guatemalan asylum seekers. The lawsuit began in May
1985 in response to the arrest of the sanctuary movement leaders. They initially
claimed that the Justice Department was violating the first amendment rights of the
sanctuary proponents and was discriminating against Salvadorans and Guatemalans.
After the judge dismissed the claims of the sanctuary leaders, the case was re-drafted
as a class action suit on behalf of the Salvadorans and Guatemalans denied asylum.
They charged that the Justice Department was overly influenced by foreign policy
considerations when deciding the asylum claims of Salvadorans and Guatemalans,
arguing that these cases were not being decided on an individual basis because the
United States supported the governments of El Salvador and Guatemala. In pre-trial
rulings, Federal District Judge Robert Peckham held that the low asylum approval
rates of Salvadoran and Guatemalan applicants made it futile for them to pursue the
usual administrative process. In December 1990, the Bush Administration reached
an out-of-court settlement, agreeing to reconsider de novo the Salvadoran and
Guatemalan asylum cases.25
Although media accounts during the decade estimated the number of Salvadoran
asylum seekers to be about half a million, only about 190,000 registered for TPS and
as ABC claimants. When their TPS status expired in 1991, the Bush Administration
opted not to renew it, but to give them deferred enforced departure (DED), a blanket
CRS-13
President Bush had previously given DED to Chinese students in the U.S. during the
26
Tiananmen Square demonstrations and crackdown. Among other things, DED differs from
TPS in that it does not require a determination that conditions are unsafe in the home
country and it did not (at that time) bar aliens from receiving public assistance if they were
otherwise eligible.
INS extended the employment authorizations for the Salvadorans in the ABC class
27
and encouraged all of them to apply for asylum by January 31, 1996.
CRS Report 88-586 F, Guatemala: Country Background Report, by Maureen Taft-
28
Morales; CRS Review, Guatemala: Development of Democracy and U.S. Influence, by
Maureen Taft-Morales, Feb. 1989; and CRS Report 91-183, Latin America: An Overview
of U.S. Policy Challenges in 1991, by Nina M. Serafino, K. Larry Storrs, and Maureen Taft-
Morales.
form of relief from deportation like EVD. The DED was extended until December
26
1994 so that the ABC claimants could be phased into the asylum system.27
Guatemalans
Conditions in Guatemala during the 1980s 28
While Guatemala has a Gross National Product (GNP) that makes it one of the
wealthiest nations in Central America, its income distribution is highly skewed.
During the 1980s it had one of the lowest wage levels in Latin America. The
disparities in wealth helped fuel the insurgency which began in the 1960s. Almost
half of Guatemala’s population is indigenous, yet, the Hispanic elite has traditionally
dominated. Although Spanish is the official language, there are about 20 indigenous
languages spoken as well. About 54% of the population is illiterate.
Guatemala had a long tradition of authoritarian rule, and its record of human
rights abuses swelled in the late 1970s. When Congress, as it had done to El
Salvador, conditioned the receipt of military aid on improved human rights
conditions, the Guatemalan military opted to not seek U.S. aid. In 1982, General
Efrain Rios Montt led a coup and stepped up efforts to quell the leftist insurgency.
Rios Montt appeared to succeed in combating the insurgency, but reports of human
rights atrocities increased. Economic and social problems prompted another coup in
1983, this time placing General Omar Mejia Victores in power.
Mejia seemed willing to relinquish the role of governing to civilians given the
military’s lack of success with social and economic policy, and a constitutional
assembly was elected in 1984. In 1985, presidential and legislative elections were
held, and a Christian Democrat was elected President on a reform platform. Prior to
the inauguration of President Vinicio Cerezo, the out-going military government
declared an amnesty that barred prosecution of military personnel for human rights
violations and death squad activities. The military continued to treat the leftist
guerrillas as armed subversives rather than belligerents in a civil war. Although it
appeared that most people in Guatemala supported the broadening of political
freedoms and the move toward democracy under Cerezo, the extreme right attempted
a coup against him in 1988. Despite the failure of the coup, military repression
Figure 4. Guatemalan-Born Residents of the
United States in 1990 by Period of Arrival
CRS presentation of data from U.S. Bureau of Census, 1990 Census of Population (CP-3-1).
71.513
32.921 31.232 35.02
54.934
Pre-1980 1980-81 1982-84 1985-86 1987-90
0
20
40
60
80
100
120
140
Thousands
Non-Citizen Naturalized
CRS-14
seemed to increase as did rightist paramilitary group activity. Both the left and the
right were blamed for reported escalations in kidnaping, torture and murder in the
late 1980s.
The United States supported the Cerezo government, resuming military aid
when he took office. This aid was consistent with U.S. policy to help combat
communist-backed insurgencies throughout the region. In December 1990, however,
the Bush Administration suspended military aid over human rights concerns, notably
the implications that Guatemalan security forces were involved in the murder of U.S.
citizen Michael Devine.
Estimated Numbers of Guatemalan Migrants
According to the
1990 Census of
Population, there were
225,739 persons
residing in the U.S.
who reported that they
had been born in
Guatemala. Only 17%
indicated that they had
become U.S. citizens.
About 68% of these
Guatemalan-born
residents reported that
they had come after
1980 (Figure 4). Data
on legal immigration
from INS indicates that 87,939 Guatemalans immigrated from FY1981 through
FY1990; however, about 50,000 adjusted status as a result of IRCA (documenting
that they had been residing illegally in the U.S. prior to 1982). The 1990 Census of
Households reported that 154,226 Guatemalans migrated to the United States during
that period.
As with the Nicaraguans and Salvadorans, it is reasonable to assume that many
of the Guatemalans who migrated during the 1980s came outside of the legal
immigration system, and thus are “illegal aliens.” And as the Nicaraguans and
Salvadorans, they also may be considered asylum seekers. From FY1981 through
mid-FY1991, there were 41,942 Guatemalans who applied for asylum with INS.
Policy Response to Guatemalan Asylum Seekers
Guatemalan asylum seekers were treated much like the Salvadorans during the
1980s, though the Salvadorans received greater public attention. The Guatemalan
asylum approval rates were quite low — some years under 2%— and averaged lower
than the Salvadorans over the course of the decade. The number of Guatemalans
deported rose steadily from 549 in FY1981 to 3,454 in FY1989 and totaled 14,346
for the entire period.
CRS-15
Over the years, the annual number of suspensions of deportations have ranged from
29
lows of 17 in FY1980, 8 in FY1983, and 17 in FY1985. The numbers rose to 413 in
FY1986 and then jumped to 2,441 in FY1987 and 3,772 in FY1988. Though the numbers
when down in the early 1990s (889 in FY1990 and 782 in FY1991), they went back up
again, hitting 3,168 in FY1995 and peaking at 5,812 in FY1996.
The sanctuary movement soon embraced the Guatemalans as well as the
Salvadorans, and — as discussed above — the Guatemalans were part of the ABC
class action case. INS reports that about 50,000 Guatemalans have filed new asylum
cases as a result of the ABC settlement.
Legislative Issues
Policy Questions
The particular circumstances of the Nicaraguans, Salvadorans, and Guatemalans
and the complex immigration situation in which they are caught raises a series of
policy questions. The following discussion considers the major questions arising in
this debate, but is not meant to be exhaustive.
Should the 4,000-person annual limit on cancellation of removals be waived
or raised to accommodate the Central Americans? Those who favor lifting the
4,000 limit point out that it was exceeded last year prior to the new law and, thus,
maintain that cap is unrealistic. They also argue that it arbitrarily restricts the
29
discretionary authority of the Attorney General to grant relief to people who meet the
terms of the law.
Supporters of the cap say that it is realistic, given the tighter standards for
cancellation of removal. They also point out the annual number of suspensions of
deportation granted was once much lower, only recently soaring into the thousands.
They support the current threshold and numerical limits because they do not want the
provision to be a vehicle for granting permanent legal status to large classes of
foreign nationals. Rather, they view the Central American issue as a matter to be
addressed within the context of legal immigration reform.
Does the special situation of Central American asylum seekers warrant
legislation “legalizing” their immigration status? Some have argued that special
legislation making the Central Americans legal permanent residents is the most
efficient and fair solution. They cite past precedents of special provisions for
Hungarians, Cubans, Poles, Ethiopians, Ugandans, and Chinese who fled to the
United States and were subsequently given legal permanent residence by acts of
Congress. Some argue further that U.S. foreign policy during the 1980s indirectly
spawned the outpouring of asylum seekers and that the United States, thus, has a
moral obligation to these displaced people. They contend that U.S. policy
encouraged them to remain here and establish roots in their communities.
Opponents of such legislation argue that the public does not support another
“legalization” program like the 1986 Immigration Reform and Control Act (IRCA)
CRS-16
For further discussion and legal analysis, see: CRS Report 97-911, Suspension of
30
Deportation: Tighter Standards and Their Application to Central Americans and Other
Long-Term Residents, by Larry M. Eig.
This is commonly referred to as the “stop-time” provision. For more information, see:
31
CRS Report 97-702, Suspension of Deportation: Effect of § 309(c)(5) of IIRIRA on
Pending Deportation Cases, by Larry M. Eig and Andre O. Mander.
created and that doing so would not be in the national interest. They state that
temporary relief from deportation should remain temporary, noting that when
Congress established the TPS provisions in the 1990 Immigration Act, it required a
supra-majority vote of the Senate to adjust beneficiaries to legal permanent residents
because it only should occur in the most exceptional situations when there was a
broad base of support to do so. They maintain that U.S. efforts to support democracy
in this hemisphere does not guarantee a permanent home in the United States to
foreign nationals fleeing civil strife that may result from the struggle for democracy.
Should Congress enact legislation to “grandfather” the Central Americans
under the old suspension of deportation provisions? Advocates for the Central
Americans say “yes,” arguing that it is the fair way to treat people who were already
in immigration proceedings when the new provision was enacted. They assert that
U.S. government officials and immigration lawyers already informed them of the
suspension of deportation option if they were denied asylum. The rules, they assert,
should not be retroactively applied to people, especially those who can demonstrate
“deep roots” in the community and extreme hardship to their families if deported.
Proponents of the current law say that the suspension of deportation provision
were changed for just this type of reason — to prevent from being used to provide
blanket relief to large groups of aliens. Since Congress certainly has the prerogative
to revise laws, there is no reason, they maintain, not to apply the new standards to
those who had not yet received suspension of deportation. They argue that
exempting the Central Americans from the new, more restrictive provisions might
well result in de facto amnesty for them.
Legislation30
The Clinton Administration favored the option to “grandfather” the Central
American asylum seekers under the previous law. The legislative initiative proposed
by Attorney General Reno, the “Immigration Reform Transition Act of 1997,” would:
have 1) applied the standards of suspension of deportation in effect prior to IIRIRA
to those applicants who were in the “administrative pipeline” before April 1, 1997;
2) clarified that the provision in IIRIRA requiring that an applicant for suspension of
deportation meet the 10-year physical presence rule only applies to cases filed after
April 1, 1997; 3) applied the 4,000-person annual cap only to cases filed after April
31
1, 1997; and 4) enabled the ABC class aliens to apply for suspension of deportation
under the pre-IIRIRA rules. This legislation was introduced as S. 1076 by Senators
Connie Mack, Bob Graham, and Ted Kennedy.
Attorney General Reno asserted that the legislation would not constitute an
amnesty program for thousands of illegal aliens and maintained that each alien would
CRS-17
Interpreter Releases, v. 74, n. 3, August 11, 1997.
32
still have to appear before an immigration judge and prove that they are eligible for
suspension. The chair of the House Committee on the Judiciary Subcommittee on
Immigration and Claims, Representative Lamar Smith, reportedly was skeptical of
these assurances, positing that the Clinton Administration’s proposal bore the “strong
influence of foreign governments” on the Administration.32
Senator Mack initially offered language drawn from S. 1076 as an amendment
(No. 1253) to the bill appropriating funds to the District of Columbia (S. 1156) on
September 25, and the amendment passed by a vote of 99 to 1 on October 7, 1997.
The Mack amendment would have extended coverage to members of the following
classes: Salvadorans who entered on or before September 19, 1990 and registered
for benefits under ABC or sought Temporary Protected Status (TPS) on or before
October 31, 1991; and, Guatemalans who entered on or before October 1, 1990, who
registered for benefits under ABC on or before December 31, 1991; and those
Nicaraguans, Salvadorans, or Guatemalans who filed an asylum application prior to
April 1, 1990 and whose case had not been granted, denied or referred as of April 1,
1997. Additionally, the original Mack amendment would have included the spouses
and unmarried sons or daughters of the protected Salvadorans and Guatemalans, so
long as the Salvadoran family members entered the United States on or before
September 19, 1990 and the Guatemalan family members entered the United States
on or before October 1, 1990. Grants of relief to these aliens would have been
exempt from the annual cap 4,000.
In terms of relief granted, the original Mack amendment would have applied
almost all of the “suspension of deportation” standards — as opposed to IIRIRA’s
more restrictive “cancellation of removal” standards — to hardship applications filed
by the protected class of Central Americans specified above. While the original Mack
amendment expressly excepted those specified Central Americans from IIRIRA’s
“stop-time” rules, it was silent on whether IIRIRA’s “stop-time” rules apply in pre-
IIRIRA deportation cases of other aliens (e.g., Mexicans, Haitians).
In the House, Representative Lincoln Diaz-Balart introduced legislation, the
Immigration Technical Revisions Act of 1997" (H.R. 2302) that was comparable but
not identical to the Administration’s proposal. H.R. 2302, like the Mack amendment,
did not strike the paragraph in IIRIRA that states that the accumulation of time “shall
apply to notices to appear issued before, on, or after” the date of enactment
(September 30,1996), commonly referred to as the “stop-time” provision. As a
result, some question whether H.R. 2302 would have resolved the confusion over
whether the provision in IIRIRA requiring that an applicant for suspension of
deportation meet the physical presence rule only applies to cases filed after April 1,
1997. Representative Carrie Meek introduced H.R. 2442 which was identical to H.R.
2302 except that it also included Haitians who applied for asylum prior to October
15, 1994, or who were paroled into the United States prior to October 15, 1994.
Representative Luis Gutierrez, a co-sponsor of H.R. 2302, also introduced legislation
(H.R. 1545) that would eliminate the annual 4,000-person numerical limit on
cancellations of removal.
CRS-18
The 10,000 additionally allotted for grants of relief from deportation would be taken
33
from the subsequent year’s visas allocated for unskilled legal immigrants. For an
explanation of the unskilled visa category, see: CRS Report 95-1210, Immigrant Skills:
Trends and Policy Issues, by Ruth Ellen Wasem and Linda Levine; and CRS Report 94-146,
Immigration: Numerical Limits on Permanent Admissions, by Joyce C. Vialet and Molly
R. Forman.
H.R. 2607 passed the House on October 9, 1997, without any provisions for the
34
Central Americans. H.R. 2607 then passed the Senate on November 9, 1997 with the
compromise language. The rule on the legislation, H.Res. 324, passed the House on
November 12, 1997, though Congresswoman Meek opposed the rule on the floor because
the Haitians were not included The bill was cleared for the White House November 13, and
President Clinton signed it on November 19, 1997 (P.L. 105-100).
Representative Lamar Smith introduced legislation (H.R. 2533) that would have
been more narrow in its relief. The Smith bill would have clarified the confusion
over when the provision in IIRIRA requiring that an applicant for suspension of
deportation meet the 10-year physical presence rule by applying the rule to all cases
pending before IIRIRA’s effective date of April 1, 1997 — with some exceptions.
In other words, the Smith bill would not have broadly “grandfathered” aliens with
cases pending under the old law; rather, it would have applied the stricter hardship
standards and 10-year physical presence rule to aliens in the pipeline. The notable
exceptions (if the aliens have not been apprehended trying to enter the United States
illegally after December 12, 1990) were for members of the following classes:
Salvadorans who entered on or before September 20, 1990 and registered for benefits
under ABC or sought TPS on or before October 31, 1991, and applied for asylum on
or before February 16, 1996; Guatemalans who entered on or before October 1, 1990,
who registered for benefits under ABC on or before December 31, 1991, and applied
for asylum before January 3, 1995; and, Nicaraguans who first entered the United
States on or before April 1, 1990. For these classes of aliens, H.R. 2533 would have
deemed that physical presence would have terminated on April 1, 1997. In contrast
to the original Mack amendment, H.R. 2533 included among its “protected class” a
broader group of Nicaraguans, but a more limited group of Salvadorans and
Guatemalans. The Smith bill, furthermore, would have allowed the 4,000 numerical
limit to be exceeded by 10,000 annually to accommodate the Central Americans.33
Compromise language entitled the “Nicaraguan Adjustment and Central
American Relief Act” was included in the District of Columbia appropriations law,
H.R. 2607 as passed and which was signed by President Clinton on November 19,
1997. The compromise, which was crafted by several of the key sponsors of the
34
earlier proposals (reportedly including Diaz-Balart, Mack, and Smith) has several key
features. Foremost, it enables Nicaraguans and Cubans physically present in the U.S.
since 1995 to adjust to permanent resident status, a much more generous provision
than in earlier proposals. Secondly, it does not apply the stricter hardship standards
and the 10-year physical presence rule of the 1996 Act to the ABC class of
Salvadorans and Guatemalans, much like the earlier proposals. It also does not apply
these post-1996 rules to nationals of the former Soviet Union and Eastern Bloc
countries who arrived in the United States by December 31, 1990 and who applied
CRS-19
The language specifies nationals of the Soviet Union, Russia, any republic of the
35
former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania,
Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former
Yugoslavia.
Currently, there are 55,000 visas annually allotted to the diversity program and
36
10,000 annually allotted to the other worker preference category. For more information
about these legal immigrant admission categories, see CRS Report 94-146, Immigration:
Numerical Limits on Permanent Admissions, by Joyce C. Vialet and Molly R. Forman, June
25, 1997.
for asylum by December 31, 1991. Spouses and minor children of the eligible
35
aliens are also covered by these benefits.
Although the Nicaraguan and Cubans adjustments will not be offset by a
reduction in legal immigration visas, the adjustments resulting from successful
cancellation of removal appeals of Salvadorans, Guatemalans, and nationals of the
former Soviet Union and Eastern Bloc countries will be offset by temporary annual
reductions of 5,000 each from the diversity visa program and the other worker
(unskilled) preference category, according to formulae specified in the Act.36
The compromise language in H.R. 2607, however, sparked new controversies.
The agreement to move up the arrival date of Nicaraguans to December 1, 1995, and
to add Cubans (not already eligible to become legal permanent residents through the
Cuban Adjustment Act of 1996) led those sympathetic to the Haitians paroled into
the United States in the early 1990s after the 1991 coup to seek inclusion of the
Haitians as well. President Bill Clinton sent a letter to House Speaker Newt Gingrich
on November 4, 1997, urging that the Haitians be treated similarly to the Central
Americans. Efforts to add such language to H.R. 2607 were unsuccessful. In
addition, supporters of the ABC class are critical of the differential treatment the Act
affords the Nicaraguans and Cubans in contrast to the Salvadorans and Guatemalans.
While some are now arguing for the Haitians, Salvadorans, Guatemalans, and Eastern
Bloc asylum seekers to be eligible for the same benefits as the Nicaraguans and
Cubans, others are criticizing the agreement as a legalization program that back
slides from the reforms made by the 1996 immigration act.
... Although the Carter administration gave economic (but not military) aid to the new government, the entering Reagan administration suspended it in 1981 and eventually started supporting groups aiming to overthrow the Sandinista government operating from Honduras that would later become the Contras. Congress banned military aid to the Contras after the Sandinistas held and won elections in 1984 while the government established a total trade embargo with Nicaragua (Wasem 1997). The embargo, along with the diversion of funds to combat the Contras and the damaging effects of Hurricane Joan in 1988 paralyzed the Nicaraguan economy before a peace agreement was signed in 1989. ...
... Although Mexicans were the main IRCA beneficiaries, Central Americans emigrating before or during the early stages of conflict did benefit from its main amnesty provision, General Amnesty (GA). GA provided opportunities to obtain permanent residence to individuals continuously present in the country since or prior to 1982. 10 In addition to granting permanent residence to just over 2 million Mexicans, 136,000 Salvadorans, 50,000 Guatemalans, and 15,000 Nicaraguans obtained LPR status through IRCA (Wasem 1997). ...
... Currently, 71.1% (480,000) of the worldwide cap is allocated for family provisions, 20.7% (140,000) for employment-based admissions, and the remainder 8.2% (55,000) is allocated to diversity visas. Family provisions allow U.S. citizens many more opportunities for 9 Although the treatment of neither Central American group fleeing conflict could be qualified as welcoming by U.S. immigration policies and practices, it conspicuously varied according to foreign policy considerations based on the political ideology of the government in power (Coffino 2006;Coutin 2000;Mitchell 1989Mitchell , 1992Wasem 1997), Nicaraguans eventually getting better treatment than Salvadorans and Guatemalans. As such, results shown in this paper (e.g. ...
... 4Eligible migrants from El Salvador first received an official TPS designation as part of the Immigration Act of 1990. The relief was prompted by the Salvadoran army's brutal murders 2 SeeWasem (1997) for background on Central American migrants through late 1997.3 For an overview of Salvadoran immigration, see http://www.migrationpolicy.org/article/salvadoran-immigrantsunited-states/. 4 See the IMF country report on El Salvador available at http://www.imf.org/external/pubs/ft/scr/2013/cr13132.pdf. ...
... It is estimated that 136,000 Salvadorans and 50,000 Guatemalans were legalized through IRCA. 34 This represents around a fifth of the unauthorized population from these nations in 1990 (see Figure 1). ...
Technical Report
Full-text available
In spite of a major economic slowdown in 2007-2009 and an increasing escalation of immigration and border enforcement in both the United States and Mexico over the last decade, unauthorized migration from the Northern Triangle of Central America (NTCA, i.e., El Salvador, Guatemala and Honduras) has persisted. These trends are puzzling and stand in contrast to those of unauthorized migration from Mexico, which has decreased over the last seven years. To understand these trends, we briefly describe the history of international migration dynamics from the NTCA countries, discussing their main drivers, features, and demographic profile. We explain the role of economic and political contexts of emigration from each NTCA nation, as well as reviewing the immigration policies and the contexts of reception in the United States and Mexico; we then relate this to the socio-demographic profiles of the NTCA population in both countries. The continued history of political turmoil, violence, and uneven and unstable economic development –along with the growth and strengthening of migrant networks– largely explains the continuation of sustained emigration flows from all three NTCA nations despite the rise of unwelcoming contexts of reception and transit in Mexico and the U.S. Among the different recent issues, we discuss the recent rise in the flow of unaccompanied minors, and the respective roles of the sending, transit, and destination countries in driving the continuation of these flows. Finally, in light of this historical and demographic overview, we offer a set of basic policy recommendations for the management of the different migration flows, and the establishment of new data and research needs to better understand their drivers and future trends.
... Few U.S. citizens and politicians understood the implications of the Immigration Reform and Responsibility Act signed by President Clinton in 1996. This bill required U.S. deportation strategy to focus on deporting criminals (Wasem 1997). At a superficial level this made sense; deporting hardened criminals is logical when seen through the short-term lens of national security. ...
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Executive Summary This article uses a multidisciplinary approach — analyzing historical sources, refugee and asylum admissions data, legislative provisions, and public opinion data — to track the rise and fall of the US asylum and refugee policy. It shows that there has always been a political struggle between people who advocate for a generous refugee and asylum system and those who oppose it. Today, the flexible system of protecting refugees and asylees, established in 1980, is giving way to policies that weaponize them. It offers a historical analysis of US refugee and asylum policies, as well as xenophobic and nativist attitudes toward refugees. It places Trump administration refugee policies in three categories: those that abandon longstanding US legal principles and policies, most notably non-refoulement and due process; those that block the entry of refugees and asylees; and those that criminalize foreign nationals who attempt to seek asylum in the United States. The article concludes with an analysis of public opinion research to square the growing public support for refugees and asylees shown in polling data with the subgroup popularity of Donald Trump’s harsh xenophobic rhetoric and policies. These seemingly contradictory trends are consistent with research on right-wing populism. It argues that the restoration of generous humanitarian policies requires robust civic engagement and steadfast legislative efforts.
Article
Full-text available
This article uses a multidisciplinary approach — analyzing historical sources, refugee and asylum admissions data, legislative provisions, and public opinion data — to track the rise and fall of the US asylum and refugee policy. It shows that there has always been a political struggle between people who advocate for a generous refugee and asylum system and those who oppose it. Today, the flexible system of protecting refugees and asylees, established in 1980, is giving way to policies that weaponize them. It offers a historical analysis of US refugee and asylum policies, as well as xenophobic and nativist attitudes toward refugees. It places Trump administration refugee policies in three categories: those that abandon longstanding US legal principles and policies, most notably non-refoulement and due process; those that block the entry of refugees and asylees; and those that criminalize foreign nationals who attempt to seek asylum in the United States. The article concludes with an analysis of public opinion research to square the growing public support for refugees and asylees shown in polling data with the subgroup popularity of Donald Trump’s harsh xenophobic rhetoric and policies. These seemingly contradictory trends are consistent with research on right-wing populism. It argues that the restoration of generous humanitarian policies requires robust civic engagement and steadfast legislative efforts.
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Temporary protection programs can provide haven to endangered persons while states and nongovernmental organizations (NGOs) work to create durable solutions in sending, host and third countries. ¹ They have the potential to further the interests of forced migrants in protection, states in effective and coordinated migration management, and the international community in solidarity. US temporary protection programs rest primarily on executive discretion and have not been substantially revisited for nearly 25 years. “Parole” represents the primary vehicle for temporarily admitting noncitizens for emergency and humanitarian reasons. ² Prior to 1980, the United States used parole to admit large refugee and refugee-like populations to whom (in most cases) it later extended lawful permanent resident (LPR) status. The 1980 Refugee Act made the US refugee resettlement program the primary vehicle for refugee admissions, limited the use of parole to individuals (not groups), and created a presumption against granting parole to refugees. The United States provides immigrant (permanent) visas to abused, neglected and abandoned children, as well as to certain Iraqis and Afghanis who worked for the US military or for military contractors. It can also award up to 5,000 nonimmigrant (temporary) “T” visas each year to victims of human trafficking and up to 10,000 nonimmigrant “U” visas to survivors of crime who assist law enforcement officials in investigating and prosecuting crimes. However, since 1980, the United States has lacked a dedicated legal vehicle for admitting other refugee-like populations. Temporary protected status (TPS) applies to noncitizens from states experiencing armed conflict, the aftermath of natural disaster, or other extraordinary, temporary conditions that make it unsafe to return. The TPS statute allows the secretary of the US Department of Homeland Security (DHS) to designate states or regions within states for TPS, although the United States has never limited TPS to substate groups. TPS does not cover persons from designated states who arrive following the effective date of the designation, even those who fled great peril. TPS recipients cannot petition for the admission of close family members. In addition, TPS cannot be granted to persons in substantial need of protection from undesignated states. Like refugees and asylees, TPS recipients receive work authorization. Unlike refugees or asylees, they are not eligible for resettlement benefits or deemed “qualified” for most federal public benefit programs. They can apply for political asylum and immigration benefits. However, TPS does not, in itself, lead to permanent status or other durable solutions. Beyond TPS, the executive branch can exercise its discretion not to remove persons who fall outside its law enforcement priorities, including persons who might otherwise suffer violence, extraordinary hardship, or death at home. This paper outlines international standards for the design and operation of temporary protection programs, describes the US refugee protection program writ large, and identifies gaps in protection. It recommends that Congress create a nonimmigrant “protection” visa for noncitizens who are at substantial risk of persecution, danger, or harm in their home or host countries, and that DHS expand its use of parole for de facto refugees and individuals in refugee-like situations. It also argues that the United States should prioritize the reconstruction and development of TPS-designated states and work to establish regional migration and development agreements covering North America, Central America and the Caribbean. Congress should also pass legislation to extend LPR status to long-term recipients of temporary protection. In particular, it should advance the “registry” date to January 1, 1999 (which would provide LPR status to most noncitizens in the country since that date) and it should automatically move up the registry cut-off date each year thereafter by one year. It should also pass broad immigration reform legislation, including a legalization program that would credit years in receipt of temporary protection toward the time required to “earn” legalization. And it should allow temporary protection recipients to apply affirmatively for “cancellation of removal” (which brings LPR status) after 10 years. DHS should also create a more inclusive TPS determination process by hosting quarterly public hearings on conditions in TPS-designated and TPS-eligible nations. It should also re-designate more states for TPS in order to allow persons from designated states who have fled dangerous conditions and entered the United States between the initial designation and re-designation periods to qualify for TPS.
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Full-text available
Temporary protection programs can provide haven to endangered persons while states and non-governmental organizations (NGOs) work to create durable solutions in sending, host and third countries.[1] They have the potential to further the interests of forced migrants in protection, states in effective and coordinated migration management, and the international community in solidarity.US temporary protection programs rest primarily on executive discretion and have not been substantially revisited for nearly 25 years. “Parole” represents the primary vehicle for temporarily admitting non-citizens for emergency and humanitarian reasons.[2] Prior to 1980, the United States used parole to admit large refugee and refugee-like populations to whom (in most cases) it later extended lawful permanent resident (LPR) status. The 1980 Refugee Act made the US refugee resettlement program the primary vehicle for refugee admissions, limited the use of parole to individuals (not groups), and created a presumption against granting parole to refugees.The United States provides immigrant (permanent) visas to abused, neglected and abandoned children, as well as to certain Iraqis and Afghanis who worked for the US military or for military contractors. It can also award up to 5,000 non-immigrant (temporary) “T” visas each year to victims of human trafficking and up to 10,000 non-immigrant “U” visas to survivors of crime who assist law enforcement officials in investigating and prosecuting crimes. However, since 1980, the United States has lacked a dedicated legal vehicle for admitting other refugee-like populations.Temporary protected status (TPS) applies to non-citizens from states experiencing armed conflict, the aftermath of natural disaster, or other extraordinary, temporary conditions that make it unsafe to return. The TPS statute allows the Secretary of the US Department of Homeland Security (DHS) to designate states or regions within states for TPS, although the United States has never limited TPS to sub-state groups. TPS does not cover persons from designated states who arrive following the effective date of the designation, even those who fled great peril. TPS recipients cannot petition for the admission of close family members. In addition, TPS cannot be granted to persons in substantial need of protection from undesignated states. Like refugees and asylees, TPS recipients receive work authorization. Unlike refugees or asylees, they are not eligible for resettlement benefits or deemed “qualified” for most federal public benefit programs. They can apply for political asylum and immigration benefits. However, TPS does not, in itself, lead to permanent status or other durable solutions. Beyond TPS, the executive branch can exercise its discretion not to remove persons who fall outside its law enforcement priorities, including persons who might otherwise suffer violence, extraordinary hardship, or death at home. This paper outlines international standards for the design and operation of temporary protection programs, describes the US refugee protection program writ large, and identifies gaps in protection. It recommends that Congress create a non-immigrant “protection” visa for non-citizens who are at substantial risk of persecution, danger, or harm in their home or host countries, and that DHS expand its use of parole for de facto refugees and individuals in refugee-like situations. It also argues that the United States should prioritize the reconstruction and development of TPS-designated states and work to establish regional migration and development agreements covering North America, Central America and the Caribbean.Congress should also pass legislation to extend LPR status to long-term recipients of temporary protection. In particular, it should advance the “registry” date to January 1, 1999 (which would provide LPR status to most non-citizens in the country since that date) and it should automatically move up the registry cut-off date each year thereafter by one year. It should also pass broad immigration reform legislation, including a legalization program that would credit years in receipt of temporary protection toward the time required to “earn” legalization. And it should allow temporary protection recipients to apply affirmatively for “cancellation of removal” (which brings LPR status) after 10 years.DHS should also create a more inclusive TPS determination process by hosting quarterly public hearings on conditions in TPS-designated and TPS–eligible nations. It should also re-designate more states for TPS in order to allow persons from designated states who have fled dangerous conditions and entered the United States between the initial designation and re-designation periods to qualify for TPS. [1] Temporary protection refers to the universe of programs that provide safe haven to persons who would be at risk in their home or host countries. Temporary protected status (TPS) is the US program that offers group protection to non-citizens from designated states.[2] In a legal fiction, parole does not constitute an “admission.” Nor does it connote criminal conduct under US immigration law. It is an exercise of executive discretion that allows physical entry and residence for a temporary period.
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Legal advocacy on behalf of Central American asylum seekers in the United States has played a key role in developing U.S. asylum and refugee law and in creating an infrastructure of legal expertise to address the needs of legal and unauthorized immigrants more generally. This talk takes a retrospective look at this advocacy work, considering how attorneys, Central American organizations, and asylum seekers themselves have negotiated the boundaries of political asylum as they have sought to establish Central Americans' eligibility for this remedy. The talk considers three instances when Central Americans have been deemed to fall outside of the category of refugee: (1) the 1980s, when the U.S. government supported repressive regimes in El Salvador and Guatemala, and U.S. immigration officials argued that Central Americans were economic immigrants or victims of generalized violence; (2) the 1990s, when civil wars in El Salvador and Guatemala came to an end, thus making it difficult for Salvadorans and Guatemalans to avail themselves of the protections that asylum could provide; and (3) the 2000s, when some Salvadoran youth who are not U.S. citizens and who are in removal proceedings after having been convicted of crimes have sought to argue that they face persecution due to membership in the social group of perceived or actual gang members. Analyzing the nature and outcomes of legal advocacy in each of these instances suggests strengths and limitations of asylum as a remedy for victims of violence. The talk is based on 1987-2008 fieldwork among and interviews with Central American asylum seekers, legal advocates, and deportees.
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This article takes a retrospective look at legal advocacy on behalf of Central American asylum seekers, which has been influential in the development of US asylum law and in the creation of an infrastructure to address immigrants' needs. The article considers three time periods when Central Americans have been deemed to fall outside of the category of refugee: (1) the 1980s, when US administrations argued that Central Americans were economic immigrants; (2) the 1990s, when civil wars in El Salvador and Guatemala came to an end; and (3) the 2000s, when some Salvadoran youths in removal proceedings have argued that they faced persecution as perceived or actual gang members. This retrospective analysis highlights the ways in which law can be creatively reinterpreted by legal actors, as well as how legal innovations carry forward traces of prior historical moments.
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