The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was enacted on September 30, 1996 in order to aid the government in keeping track of who is present in the United States. However, some provisions raise questions about whether the principle of due process of law has been properly safeguarded in this bill. Three particular provisions of IIRIRA are discussed herein: (1) bars to admission; (2) retroactivity; and (3) relief for legal residents.
First, IIRIRA expanded the grounds of inadmissibility for those now seeking admission who had previously been unlawfully present in the United States. The “unlawful presence” rules are as follows:
(1) aliens who were unlawfully present in the United States for more than 180 days but less than one year are inadmissible for readmission for three years following their departure (the “3-year bar”);
(2) aliens who were unlawfully present in the United States for more than one year are inadmissible for readmission for ten years following their departure (the “10-year bar”);
(3) aliens who were unlawfully present in the United States for more than one year, departed, and then re-entered or attempted to re-enter the United States without authorization are permanently inadmissible (the “permanent bar”).
Second, IIRIRA made its immigration deportation provisions applicable to criminal offenses committed before it was enacted. In the criminal law context, such retroactive application of the law is unconstitutional because it penalizes persons for acts that were not considered criminal at the time they were committed. Applying this principle to the immigration law context, it could be argued that retroactively applying deportation provisions was unconstitutional because aliens were not put on notice that the commission of certain offenses would bar them from future entry to the United States.
Third, IIRIRA removed the ability of long-time legal residents who have not committed a serious offense to apply for relief from deportation. Prior to IIRIRA, an immigration judge was authorized to review such cases and make determinations as to relief on an individual basis. Pursuant to IIRIRA, this judicial role has been greatly limited; deportation decisions are now made by immigration agency officials who are generally not subject to review. Thus, a legal resident may not have adequate opportunity to present his or her case to an immigration judge before being deported.
Beyond IIRIRA, another recent due process concern involves Social Security Administration (SSA) “no-match” letters – letters notifying U.S. employers that one of their employees social security number does not match his name and date of birth. The Department of Homeland Security (DHS) has recently reiterated that U.S. businesses are obligated to inquire into and properly resolve “no-match” letters issued to their employees. Failure to do so can result in DHS levying fines against offending businesses.
While it is certainly legitimate for the government to regulate the practice of hiring illegal workers, employees who are the subject of “no-match” letters should be given sufficient time to prove they are laboring under proper documentation. Without granting such persons adequate time to respond, they may be terminated on the spot, or given too brief a window in which to submit the proper paperwork.Catholic Social Teaching
The Catholic Church has consistently affirmed the basic rights of the human person, including the rights to those things necessary for life, personal safety and freedom. While affirming these rights, the Church also has recognized the corresponding duty of government to ensure that the rights and dignity of all human beings are protected and upheld. Church teaching recognizes human sinfulness and affirms the realities of moral choice, personal responsibility, and obedience to rightful authority. At the same time, it proclaims a message of forgiveness and redemption as derived from God’s infinite love and saving grace.
In testimony before the Senate Immigration Subcommittee on May 3, 2001, Bishop Nicholas DiMarzio, the former Chairman of the U.S. Bishops' Committee on Migration, stated:
"We understand the importance of the rule of law and the responsibility of the civil society to enforce that law to secure justice, harmony, and rehabilitation. However, the enforcement of the law and the protection of our communities must not come at the deprivation of the basic human rights of the person, even if they have committed a criminal offense and even if they do not share the full fruits of citizenship."USCCB Position
In order to ensure due process of law consistently throughout the U.S. Immigration system, the U.S. Catholic Bishops support amending IIRIRA to mitigate the three-year, ten-year, and permanent bars to admission for those who were previously unlawfully present in this country, particularly for family members of legal residents. The Bishops also call for eliminating the retroactive application of IIRIRA’s deportation and removal provisions so that all persons might be properly put on notice of what constitutes a deportable offense. In addition, the Bishops urge Congress to allow greater judicial discretion in hearing and reviewing the cases of aliens subject to detention and removal, especially long-time legal residents. Finally, the Bishops advocate adequate safeguards for employees who are the subject of SSA and DHS “no-match” letters.
1 One exception to the permanent bar allows the alien to apply for readmission after remaining outside the United States for ten years. However, approval of such an application is not automatic. In addition, if the alien does not file the application in a timely fashion, he or she may lose the opportunity to do so.