New INS Rules Call for Deportation Unless Applicants Can Prove Extreme Hardship

Long-awaited federal guidelines will require that tens of thousands of immigrants from El Salvador, Guatemala and the former Soviet bloc be deported unless they can prove that returning home would be an “extreme hardship” for them or their families.

The proposed Immigration and Naturalization Service regulations, which are expected to be announced this week, are a major setback for Central American immigrants who had hoped the Clinton administration would declare deportation a hardship for all of them--particularly in the wake of Hurricane Mitch.

The new guidelines apply to those who have been living in the United States since at least 1990, including Central Americans who fled warfare and economic troubles. Many since then have sunk roots, buying homes and having children.

Now, community leaders in California and elsewhere fear that the costly and difficult process of proving hardship will lead to the expulsion of tens of thousands.

“This is a major blow--especially in conjunction with Hurricane Mitch,” said Judy London, an attorney with the Central American Resource Center in Los Angeles.

The hurricane took at least 11,000 lives and wreaked havoc on regional economies, making a large-scale return of deportees an even more unwelcome prospect.

An estimated 240,000 affected Salvadorans and Guatemalans--and a much smaller number of Eastern European immigrants--are residing in the United States in a state of limbo, permitted to work here legally but facing the threat of deportation.

The 1997 Nicaraguan Adjustment and Central American Relief Act raised the possibility of legal status not only for them, but for their spouses and children, expanding the number of potential beneficiaries to as many as 500,000, according to community estimates.

Even before the hurricane, the multitudes of Central Americans living in the United States provided an essential anchor for homelands battered by years of civil war and economic tumult. Salvadoran and Guatemalans send back more than $1.6 billion annually to their homelands, according to estimates.

Andrew L. Lluberes, an INS spokesman in Washington, confirmed that the new INS rules will include no blanket determination of hardship for Salvadorans, Guatemalans and Eastern Europeans applying for permanent residency under the 1997 law. Such a blanket presumption would ensure that most would receive green cards, experts say.

There is no precise legal definition of extreme hardship. Immigration judges deciding hardship requests vary widely in their interpretations.

Applicants for such relief routinely submit complex documentation, numbering hundreds of pages, and costing thousands of dollars in legal fees.

“There are not enough attorneys in Los Angeles to handle all these cases,” said Robert Foss, directing attorney with El Rescate, a nonprofit legal aid firm in Los Angeles.

But INS officials say that they were merely following the law: The 1997 statute mandates individual review of each hardship application.

“The law does not call for automatic residency for the Salvadorans and Guatemalans,” said Allen Kay, a spokesman for U.S. Rep. Lamar Smith (R-Texas), who heads the House immigration subcommittee.

In the days after passage of the 1997 law, however, President Clinton, Vice President Gore and others made statements that led many to believe that the new guidelines would minimize the burden for Salvadorans and Guatemalans, who fled U.S.-backed regimes during the late 1970s and 1980s.

The 1997 law took a more lenient attitude toward Nicaraguans and Cubans, who mostly fled left-wing regimes. Nicaraguans and Cubans living in the United States by December 1995 were given amnesty, with no requirement that they show hardship.

The new guidelines will be available for public comment for 60 days after being published in the Federal Register. Beginning today advocates for Central Americans and Eastern Europeans plan a public campaign to oppose the guidelines.

“With a stroke of the pen the Justice Department could do more for relief and recovery of Central Americans than all of the direct hurricane aid,” said Frank Sharry, executive director of the National Immigration Forum, a Washington-based group that represents immigrants.