IIRIRA, Section 601(a): An Ambiguous, Problematic, Yet Foundational Provision for Immigration Law—Can It Be Fixed?

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the “IIRIRA”) provides a standard that defines unlawful human presence in the United States and establishes the consequences faced for such unlawful presence. Title VI, Section 601(a) of the IIRIRA (“Section 601(a)”) grants asylum to people who have undergone a forced abortion or sterilization, or been threatened with the procedure, in their native country. Section 601(a) is problematic because it does not clearly identify how far, or even whether, the granting of asylum extends to relatives of the victim of a forced abortion or forced sterilization. Furthermore, Section 601(a) does not address the union of marriage; therefore, the section does not provide a definition or requirements for a victim’s partner to be considered a husband or spouse. Additionally, the lack of clarity in Section 601(a)(2) concerning the required Attorney General’s report for such grants of asylum is problematic. These deficiencies have caused immigration officials to apply Section 601(a) inconsistently and a split among the federal appellate circuits. This division and inconsistency undercuts the purpose of United States immigration, which is to provide specific standards to all judicial circuits and officials within the United States in order to bring about the consistent and equitable application of immigration law. This Note’s proposed solution to this division within jurisprudence is to adopt an amendment to Section 601(a). The amendment would clarify which relatives of a victim should be granted asylum and would † Articles and Book Reviews Editor, LIBERTY UNIVERSITY LAW REVIEW, Volume 5; J.D. Candidate, Liberty University School of Law, May 2011; B.A. University of Minnesota, 2008. I thank my greatest treasure, Jesus Christ, in whom, by whom, and for whom all things hold together. Colossians 1:16-17 (ESV). Without His salvation, I would have no hope. I also thank my precious wife, Davy, whose love, patience, and grace toward me are the greatest example of Christ’s grace that I have ever experienced. I am grateful for my parents’ unwavering love and support, without which I would not be where I am today. Finally, I would like to thank the Liberty University Law Review editors, whose tireless efforts assisted in the crafting of this Note. Soli Deo Gloria. 152 LIBERTY UNIVERSITY LAW REVIEW [Vol. 5:151 particularize the Attorney General’s required report even further. An amendment to Section 601(a) is the best solution to the problem, because even though the IIRIRA has not achieved a solution to all immigration problems, the Act has established foundational tenets on which to build, particularly in the area of asylum for victims of forced abortions and forced sterilizations. Asylum under the amendment to Section 601(a) would extend only to the legal husband and children of the victim of a forced abortion or forced sterilization. This requirement and specification concerning relatives would prevent falsification and fraud in the application process. Such an amendment also would require that the Attorney General’s report contain documented evidence that each approved applicant underwent a forced abortion or forced sterilization that was coercive, and it would establish criteria for required approval of asylum applications. These changes would clarify the confusion within jurisprudence concerning the application of Section 601(a) and would prevent ad hoc decision making by both the Attorney General and other officials in the determination and approval process concerning asylum applications.