DATELINE–Washington, D.C.

Immigration Reform and Immigrant Responsibility Act outlaws legal residency

In the wake of a controversial Senate vote, Congressional lawyers are scrambling to explain why a law that inadvertently criminalized all forms of legal immigration escaped immediate repeal. The provision in question makes it a crime to live in the United States as a “legal resident.”

Over the weekend, the Immigration and Naturalization Service worked around the clock to gear up to enforce a provision of the immigration reform law that has been on the books for almost two years.

The offending legislation known as the 1996 Illegal Immigration Reform and Immigrant Responsibility Act created a new immigration category called the “Criminal Legal Resident” in order to expedite the deportation of undesirable immigrants. While intended to target U.S. residents convicted of felonies and certain misdemeanors, a syntax error in the bill’s wording makes legal residency itself against the law.

To deal with the unintended consequences of the error, the INS had requested and been granted two extensions from the Congress which permitted it to take a non-enforcement stance. But on October 5th, what was thought to be routine vote before the Senate on a third extension turned out to be a referendum on the immigration question.

In what insiders attribute to election year politicking, the Senate voted 63-35 with two members absent, not to renew the enforcement extension requested by the INS. House members quickly put the same extension request up to a vote and rejected it by a veto-proof margin.

The law’s original intent was to require mandatory detention of U.S. residents convicted of petty as well as serious crimes. While it is currently unconstitutional to try and punish a citizen twice for the same crime, legal residents aren’t afforded the same protection.

It’s what law theorists term a “legal double jeopardy bind.” Even residents granted suspended sentences by judges would be subjected to an indeterminate period of forced detention followed by deportation proceedings. And because of the error in the bill, those being jailed despite their suspended sentences will be joined by legal residents who haven’t committed any crime at all.

Martina Reyes, executive director of the Chicago, Ill.-based Women’s Immigration Law Clinic claims the legislation is the equivalent to “no strikes and you’re out.” Yet, Reyes is optimistic that the IRIRA will be amended, citing the absurdity of the law as well as its potentially adverse economic consequences.

“It’s not possible to make residents guilty of not being citizens…if you detain someone because they’re not a citizen you’re making it illegal to be a resident,” she remarks. “If you detain them because they were already convicted of a crime once upon a time, that’s lifetime imprisonment for every felony. This is not only terrifying and preposterous, it’s unconstitutional.”

The tide may indeed be changing. The Supreme Court has already agreed to review a New York federal appeals panel finding that granted the right of habeas corpus to long-term residents facing deportation because of criminal convictions. But it will be months before a decision in American-Arab Anti-Discrimination Committee v. Reno is handed down.

In the meantime, penal experts agree that Section 321b of the IRIRA, if not revised, is poised to add a significant number of inmates to the INS’ already overcrowded system of detention centers. Currently, the INS estimates it has space for only 16,000 detainees nationwide, but it has stated its intent to build sprawling tent camps to accommodate the overflow.

The mass imprisonment is expected to force the release of illegal aliens arrested at the U.S.-Mexico border in order to make prison space available for the U.S. residents awaiting deportation proceedings. According to INS sources, the provision will also likely result in the incarceration and possible deportation of up to half a million U.S. residents in 1999 alone.