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March 18, 2000

ABROAD AT HOME / By ANTHONY LEWIS

'Cases That Cry Out'


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    Representative Lamar Smith, Republican of Texas, is a principal author of the 1996 Immigration Act. He acknowledges now that it has had some unduly harsh consequences, as in the case of the woman targeted for deportation because she was convicted of pulling another woman's hair. But he would like officials to handle those cases administratively rather than have Congress amend the act.

    "I think hardship cases are in the hundreds, not the thousands," Mr. Smith said when we talked the other day. "But I know they are there, and I don't think those individuals should be deported."

    The 1996 act calls for the deportation of aliens here legally as permanent residents if they have committed any of a long list of crimes, even before the act was passed. People who were brought here as infants and have lived here for 20 years or more have suddenly found themselves deported to a country they do not know.

    Representative Smith suggested two ways for the government to stop deportations that, though required by the statute, would be inhumane.

    First, he called for the Immigration and Naturalization Service to exercise prosecutorial discretion in hardship cases. That is, immigration officials would simply decline to proceed with a deportation case.

    Over the last several months the I.N.S. has been drafting guidelines for the exercise of prosecutorial discretion. Officials said they should be issued soon.

    But the I.N.S. argues that it would be far better to have immigration judges formally lift deportation orders after a hearing, as was done before 1996. They warn that merely exercising prosecutorial discretion would leave the alien in a legal limbo, still technically deportable and perhaps barred from re-entering the country if she goes abroad.

    Asked about that, Mr. Smith said the I.N.S. could deal with the problem by flagging on its computers the name of anyone for whom discretion had been exercised. Then officials at the border would know not to touch that person.

    Second, Mr. Smith proposed that the attorney general use a provision of immigration law that allows her to "parole" aliens into the country for "urgent humanitarian reasons." Parole, he argued, could be used to prevent deportation as well as to allow entry. He wrote Attorney General Janet Reno about that idea on March 1.

    "The Justice Department or I.N.S. could assign one staff member to look at these cases for parole," Mr. Smith said. "He could probably handle 10 cases a day."

    I was struck by how Representative Smith wanted officials to apply the law in an expansive way. In some cases I.N.S. officials have used the law relentlessly, insisting on the deportation of individuals for minor infractions.

    "The government can always do what it wants to do in hardship cases," the Congressman said. "We should not let the letter of the law get in the way of the spirit."

    Public attention to harsh consequences of the 1996 act has been growing. Newspapers and broadcasters around the country have told the stories of people caught up in the deportation provisions for minor misdeeds committed long ago. As a result, members of Congress have introduced a number of bills to amend the statute.

    One bill, H.R. 1485, has 76 co-sponsors. It would provide a hearing for aliens to seek relief from deportation if they were convicted of crimes but sentenced to less than five years in prison.

    Mr. Smith, who is chairman of the House Immigration Subcommittee, said he would not move on that bill until he heard from Attorney General Reno on his parole idea. He is hesitant to amend the 1996 act, he said, because loopholes might be created that let criminal aliens "stall deportation indefinitely."

    "I acknowledge that there are humanitarian cases," he said. "I don't want to see them treated harshly. But I would handle them on a case-by-case basis."

    He also said that a large number of "hardened criminal" aliens were "still slipping through the cracks" and not being deported. "Why not use your resources on them?" he asked. "Why are they spending their time on cases that cry out for compassion? They'll never be able to persuade me that they can't do that."




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