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S. 3121 (rs) To reauthorize programs to assist small business concerns, and for other purposes. [Reported in Senate] ...


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106th CONGRESS
  2d Session
                                S. 3120

  To amend the Immigration and Nationality Act to modify restrictions 
 added by the Illegal Immigration Reform and Immigrant Responsibility 
                              Act of 1996.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           September 27 (legislative day, September 22), 2000

 Mr. Kennedy (for himself, Mr. Graham, Mr. Leahy, Mr. Kerry, Mr. 
        Wellstone, Mr. Durbin, and Mr. Feingold) introduced the 
        following bill; which was read twice and referred to the 
        Committee on the JudiciaryYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY

_______________________________________________________________________

                                 A BILL


 
  To amend the Immigration and Nationality Act to modify restrictions 
 added by the Illegal Immigration Reform and Immigrant Responsibility 
                              Act of 1996.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES IN ACT.

    (a) Short Title.--This Act may be cited as the ``Immigrant Fairness 
Restoration Act of 2000''.
    (b) References in Act.--Except as otherwise specifically provided 
in this Act, whenever in this Act an amendment or repeal is expressed 
as an amendment to or a repeal of a provision, the reference shall be 
deemed to be made to the Immigration and Nationality Act (8 U.S.C. 1101 
et seq.).

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) The United States has a time-honored tradition as a 
        Nation of immigrants and a Nation of just laws. Our immigration 
        laws no longer reflect that tradition.
            (2) Current laws punish legal residents out of proportion 
        to their crimes. Reform is needed to restore balance to our 
        immigration system. Fundamental principles of fairness in the 
        application of the laws, due process, and judicial review must 
        apply to the foreign born and native born alike.
            (3) Laws should not be applied retroactively. Fairness and 
        practicality dictate that changes in definitions of crimes that 
        make aliens deportable should only apply to crimes committed 
        after dates of enactment. Immigration policy should not change 
        the rules in the middle of the game.
            (4) Proportionality and discretion should be restored to 
        our Nation's immigration laws. We must restore the discretion 
        immigration judges previously had and responsibly exercised to 
        evaluate cases on an individual basis and grant relief from 
        deportation to deserving families.
            (5) Detention of individuals is an extraordinary power that 
        should only be used in extraordinary circumstances. The 
        mandatory detention of immigrants who have paid their debt to 
        society and pose no threat is anathema to the protections of 
        the Constitution's Due Process Clause.
            (6) Our judicial system is one of checks and balances and 
        nowhere are these protections more imperative than in questions 
        of deportation and incarceration which so fundamentally 
        restrict individual liberties. Judicial review of immigration 
        orders and determinations is necessary to ensure that these 
        most weighty determinations are not made capriciously or 
        erroneously. Immigrants deserve their day in court.

SEC. 3. ELIMINATION OF RETROACTIVITY.

    (a) Cancellation of Removal.--Section 240A (8 U.S.C. 1229b) is 
amended by adding at the end the following new subsection:
    ``(f) Application of Law.--Notwithstanding any other provision of 
this section, an alien who committed an offense that was a ground for 
deportation or exclusion prior to April 1, 1997, shall have the law in 
effect at the time of the offense apply with respect to any application 
for relief from deportation or exclusion on that ground. For purposes 
of determining eligibility for such relief, such alien shall be 
credited with any periods of residency in the United States that the 
alien has accrued without regard to whether or not the residency 
occurred after the commission of the offense or service of a notice to 
appear under section 239(a).''.
    (b) Application of Aggravated Felony Definition.--The last sentence 
of section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended to read as 
follows: ``The term shall not apply to any offense that was not covered 
by the term on the date on which the offense occurred.''.
    (c) Grounds of Deportability.--Section 237 (8 U.S.C. 1227) is 
amended by adding at the end the following new subsection:
    ``(d) Notwithstanding any other provision of this section, an alien 
is not deportable or removable by reason of committing any offense that 
was not a ground of deportability on the date the offense occurred.''.
    (d) Grounds of Inadmissibility.--Section 212 (8 U.S.C. 1182) is 
amended by adding at the end the following new subsection:
    ``(p)(1) Notwithstanding any other provision of this section, an 
alien is not inadmissible by reason of committing any offense that was 
not a ground of inadmissibility on the date the offense occurred.
    ``(2) Any alien who applied for admission to the United States or 
adjustment of status to that of an alien lawfully admitted for 
permanent residence prior to April 1, 1997, and was inadmissible under 
subsection (a)(6)(C), shall be eligible for the relief available 
(including any waiver of inadmissibility) at the time the application 
was filed.''.
    (e) Prospective Effective Dates.--
            (1) Illegal immigration reform and immigrant responsibility 
        act.--Notwithstanding any other provision of law, the Illegal 
        Immigration Reform and Immigrant Responsibility Act of 1996, 
        and the amendments made by that Act, shall apply only to 
        persons seeking admission, or who became removable, on or after 
        April 1, 1997, as the case may be.
            (2) Antiterrorism and effective death penalty act of 
        1996.--Notwithstanding any other provision of law, title IV of 
        the Antiterrorism and Effective Death Penalty Act of 1996, and 
        the amendments made by that title, shall only apply to persons 
        seeking admission, or who become removable, on or after April 
        24, 1996.
    (f) Reinstatement of Removal Orders.--Section 241(a)(5) (8 U.S.C. 
1231(a)(5)) is repealed, and such repeal shall apply to all proceedings 
pending at any stage as of the date of enactment of this Act and to all 
cases brought on or after such date.

SEC. 4. RESTORATION OF PROPORTIONALITY TO GROUNDS OF REMOVAL.

    (a) Definition of Crimes Involving Moral Turpitude.--Section 
237(a)(2)(A)(i) (8 U.S.C. 1227(a)(2)(A)(i)) is amended to read as 
follows:
                    ``(i) Crimes of moral turpitude.--Any alien who is 
                convicted of a crime involving moral turpitude (other 
                than a purely political offense or an attempt to commit 
                such a crime) committed within five years (or 10 years 
                in the case of an alien provided lawful permanent 
                residence status under section 245(j)) for which the 
                alien is confined in a prison or correctional 
                institution for more than one year, is deportable.''.
    (b) Definition of Aggravated Felony.--Section 101(a)(43) (8 U.S.C. 
1101(a)(43)) is amended--
            (1) in subparagraphs (F), (G), (J), (R), and (S), by 
        striking ``one year'' each place it appears and inserting 
        ``more than five years'';
            (2) by amending subparagraph (N) (8 U.S.C. 1101(a)(43)(N)) 
        to read as follows:
            ``(N) an offense described in section 274(a)(1) (relating 
        to alien smuggling) for the purpose of commercial advantage.'';
            (3) in subparagraph (P)(ii) (8 U.S.C. 1101(a)(43)(P)(ii)), 
        by striking ``child'' and inserting ``son or daughter'';
            (4) in subparagraph (T), by striking ``two years'' and 
        inserting ``five years''; and
            (5) by adding at the end of section 101(a)(43) the 
        following: ``No crime shall be deemed to be an aggravated 
        felony if the underlying conviction is a misdemeanor or if the 
        sentence imposed is not in excess of one year.''.
    (c) Effective Date.--The amendments made by subsection (b) shall 
apply to convictions entered before, on, or after the date of enactment 
of this Act.
    (d) Conviction Defined.--Section 101(a)(48)(A) (8 U.S.C. 
1101(a)(48)(A)) is amended--
            (1) by redesignating clauses (i) and (ii) as subclauses (I) 
        and (II), respectively;
            (2) by striking ``(48)(A) The term'' and inserting 
        ``(48)(A)(i) Except as provided in clause (ii), the term''; and
            (3) by adding at the end the following:
    ``(ii) For purposes of determinations under this Act, the term 
`conviction' does not include any Federal, State, or foreign action to 
expunge, dismiss, cancel, vacate, discharge, or otherwise remove a 
guilty plea or other record of guilt or conviction, or any Federal, 
State, or foreign deferred adjudication, adjudication of guilt 
withheld, order of probation without entry of judgment, or similar 
disposition.''.
    (e) Definition of Term of Imprisonment.--Section 101(a)(48)(B) (8 
U.S.C. 1101(a)(48)(B)) is amended to read as follows:
    ``(B) Any reference to a term of imprisonment or a sentence with 
respect to an offense is deemed to include the period of incarceration 
or confinement ordered by a court of law excluding any period of the 
suspension of the imposition or execution of that imprisonment or 
sentence in whole or in part.''.
    (f) Conforming Amendments.--
            (1) Ground of inadmissibility.--Section 212(a)(6)(E) (8 
        U.S.C. 1182(a)(6)(E)) is amended--
                    (A) in clause (i), by inserting ``and for 
                commercial advantage'' after ``knowingly'';
                    (B) by striking clause (ii); and
                    (C) by redesignating clause (iii) as clause (ii).
            (2) Ground of deportability.--Section 237(a)(1)(E) (8 
        U.S.C. 1227(a)(1)(E)) is amended--
                    (A) in clause (i), by inserting ``and for 
                commercial advantage'' after ``knowingly'';
                    (B) by striking clause (ii); and
                    (C) by redesignating clause (iii) as clause (ii).

SEC. 5. RESTORATION OF DISCRETIONARY RELIEF FROM REMOVAL.

    (a) Cancellation of Removal.--Section 240A(a) (8 U.S.C. 1229b(a)) 
is amended--
            (1) by redesignating paragraphs (1) through (3) as 
        subparagraphs (A) through (C), respectively; and
            (2) by amending subparagraph (C) (as so redesignated) to 
        read as follows:
            ``(C) has not been convicted of an aggravated felony for 
        which the sentence imposed is five years or more.''.
    (b) Repeal of Rule for Termination of Continuous Period.--
            (1) Section 240A(d)(1) (8 U.S.C. 1229b(d)(1)) (8 U.S.C. 
        1229b(a)) is repealed.
            (2) Section 240A(d) (8 U.S.C. 1229b) is amended--
                    (A) by redesignating paragraphs (2) and (3) as 
                paragraphs (1) and (2), respectively; and
                    (B) by inserting before the period at the end of 
                paragraph (1) (as redesignated) the following: ``, 
                unless the alien's departure from the United States was 
                due to a temporary trip abroad required by emergency or 
                extenuating circumstances outside the control of the 
                alien''.
    (c) Waiver.--Section 212(h) (8 U.S.C. 1182(h)) is amended by 
striking the third and fourth sentences.
    (d) Restoration of Eligibility for Withholding of Removal.--Section 
241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B)) is amended--
            (1) by amending clause (ii) to read as follows:
                            ``(ii) the alien--
                                    ``(I) has been convicted by final 
                                judgment of a particularly serious 
                                crime for which the sentence imposed 
                                was an aggregate term of imprisonment 
                                of five years or more; and
                                    ``(II) is a danger to the United 
                                States.''; and
            (2) by striking the third sentence and inserting at the end 
        the following: ``Notwithstanding this subparagraph, an alien 
        shall be eligible for relief under subparagraph (A) if the 
        Attorney General determines the alien should not be removed for 
        urgent humanitarian reasons.''.
    (e) Waiver for Parent, Son, or Daughter.--Section 212(d)(12) (8 
U.S.C. 1182(d)(12)) is amended by striking ``or child'' and inserting 
``, parent, son, or daughter''.
    (f) Waiver of Inadmissibility Under Section 212(i).--
            (1) In general.--Section 212(i) (8 U.S.C. 1182(i)) is 
        amended to read as follows:
    ``(i) The Attorney General may, in the discretion of the Attorney 
General, waive the application of subsection (a)(6) (A), (B), or (C) in 
the case of an immigrant who is the parent, spouse, son, or daughter of 
a United States citizen or of an alien lawfully admitted for permanent 
residence if it is established to the satisfaction of the Attorney 
General that the refusal of admission to the United States of such 
immigrant alien would result in hardship to the alien or to the citizen 
or lawfully resident parent, spouse, son, or daughter of such an 
alien.''.
            (2) Conforming amendment.--Section 212(a)(6) (8 U.S.C. 
        1182(a)(6)) is amended by adding at the end the following new 
        subparagraph:
                    ``(H) For provision authorizing waiver of certain 
                subparagraphs of this paragraph, see subsection (i).''.

SEC. 6. JUDICIAL REVIEW OF CERTAIN ORDERS AND DETERMINATIONS.

    (a) Repeals.--The following provisions of the Act are hereby 
repealed and such repeal shall apply to all cases pending at any stage 
in any court as of the date of enactment of this Act and to all cases 
brought on or after such date:
            (1) Section 242(a)(2) (8 U.S.C. 1252(a)(2)).
            (2) Section 242(a)(3) (8 U.S.C. 1252(a)(3)).
            (3) Section 242(b)(4) (8 U.S.C. 1252(b)(4)).
            (4) Section 242(b)(7) (8 U.S.C. 1252(b)(7)).
            (5) Subsections (e), (f), and (g) of section 242 (8 U.S.C. 
        1252).
            (6) Section 240(b)(5)(D) (8 U.S.C. 1229a(b)(5)(D)).
            (7) Section 240B(f) (8 U.S.C. 1229c(f)).
            (8) Section 208(a)(3) (8 U.S.C. 1158(a)(3)).
            (9) Section 208(b)(2)(D) (8 U.S.C. 1158(b)(2)(D)).
            (10) Section 208(d)(7) (8 U.S.C. 1158(d)(7)).
    (b) Amendments Relating to Judicial Review.--
            (1) In general.--(A) Section 242(a)(1) (8 U.S.C. 
        1252(a)(1)) is amended--
                    (i) by striking ``(other than an order of removal 
                without a hearing pursuant to section 235(b)(1))''; and
                    (ii) by striking ``and except that the court may 
                not order the taking of additional evidence under 
                section 2347(c) of such title''.
            (B) Section 242(b)(2) (8 U.S.C. 1252(b)(2)) is amended in 
        the first sentence by striking ``judge completed the 
        proceedings'' and inserting ``proceedings were conducted in 
        whole or in part, or in the judicial circuit in which lies the 
        residence of the petitioner as defined in this Act, but not in 
        more than one judicial circuit''.
            (C) Section 242(b)(3)(B) (8 U.S.C. 1252(b)(3)(B)) is 
        amended--
                    (i) by striking ``does not'' and inserting 

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