III. Immigration Law and Public Policy Print E-mail


The 1996 "Illegal Immigration Reform & Immigrant

Responsibility Act"(IIRIRA)



President Donald Trump has pledged to expand the U.S. deportation system so that anyone accused of a criminal offense will be prioritized for deportation and anyone without documentation can be deported. The 1996 "Illegal Immigration Reform and Immigrant Responsibility Act" makes it easy to deport people. The 1996 Law was passed as part of a broader omnibus bill to avoid a government shutdown. It was not discussed in the conference committee, and many conference committee members refused to sign the bill.1


Under the 1996 Law, a single possession of marijuana offense can be sufficient to deport many green card holders, regardless of their time in the U.S. and commitment to their work, family, and community. An immigrant who does not have documentation can be deported without an opportunity to apply for admission as a permanent resident for three to ten years. For the past twenty years, the 1996 Laws have adversely affected the lives of millions. The number of annual deportations since 1996 has increased from about 70,000 annually to over 400,000 in recent years.1


"The 1996 Laws made three broad changes to the U.S. immigration system. First, they vastly expanded the criminal grounds of deportation.Second, many of the newly deportable offenses trigger mandatory detention and deportation. This bars immigration judges from considering people’s life circumstances before ordering them to a foreign country.3  Third, the 1996 Laws significantly reduce the power of the courts to ensure the laws are fairly enforced."4


The 1996 Laws also make relief from deportation extremely difficult in two major ways. First, they create fast-track deportation procedures that allow low-level Department of Homeland Security officers to bypass the immigration court system.5 This means that many noncitizens will never see an immigration judge before they are deported. Second, even if a noncitizen is lucky enough to see an immigration judge, the 1996 Laws severely restrict the relief that the judge can grant.6  By reducing the power of judges, the laws also make it more difficult to obtain a green card or another legal status."7


It took several years for policymakers to realize the unintended and devastating consequences of the 1996 Laws. But once their impact became clear, Republicans and Democrats alike called for care and restraint in their enforcement. Under previous presidents, judges didn't have the option of not ordering removal according to the 1996 Laws, but they were allowed to give immigrants an administrative delay in their removal with an annual check in with ICE. Currently the Department of Homeland Security is not allowing the administrative delays so when undocumented immigrants check back in with ICE, many face immediate deportation8 even though they are hard working reliable member of the community who are taking good care of their children.


US immigration authorities would need to allow for individualized hearings that consider not only the government’s interest in deporting an immigrant but also the immigrant’s family ties and connections to the United States to meet U.S. obligations under international human rights law.  These include the extent to which the country is in truth his or her “home”—when deciding whether to remove the immigrant.  The 1996 Immigration Law removed the role of judges and an immigrant's right to a hearing before deportation.9





1. Hunter, Bobby and Yee, Victoria.  "Dismantle, Don't Expand the 1996 Immigration Laws:  Why Ramping Up a zero tolerance immigration system will destroy lives and waste billions of dollars."  New York University School of Law Immigrant Rights Clinic.


2.  Human Rights Watch.  “Forced Apart:  Families Separated and Immigrants Harmed by United States Deportation Policy.”  July, 2017.  https://www.hrw.org/reports/2007/us0707/us0707web.pdf


3  8 U.S.C. § 1226(c) (listing grounds for mandatory detention); 8 U.S.C. § 1229b(a)(3) (barring cancellation of removal, the main form of equitable relief from deportation, for green card holders who have aggravated felony convictions); § 1229b(b)(1)(C) (creating bars to cancellation of removal for other criminal offenses).  See also Human Rights Watch, supra note 5 at 25-28 (discussing the impact of the 1996 Laws’ elimination of the § 212(c) waiver). See also supra note 4 (discussing the clock stop rule).


4.  8 U.S.C. § 1252 (stripping federal courts of jurisdiction to review many immigration judge decisions).


5.  8 U.S.C. § 1225 (provision authorizing expedited removal for inadmissible immigrants); 8 U.S.C. § 1228 (provision authorizing administrative removal for people with aggravated felony convictions).
6. 8 U.S.C. § 1229b(a)-(b) (limiting individuals eligible for cancellation of removal). The 1996 laws also eliminated the former INA § 212(c) waiver, which gave immigration judges much more discretion to grant relief; See Immigration and Nationality Act (INA) of 1952, Pub. L. No. 82-414, § 212(c), 66 Stat. 181, 187 (codified at 8 U.S.C. § 1182(c) (repealed 1996).


7. 8 U.S.C. § 1229b


8.  Robbins, Liz.  “Once Routine, Immigration Check-Ins Are Now High Stakes.”  The New York Times.  April 11, 2017.


9.  US: Devastating Impact of Trump's Immigration Policy - Deportations Undercut Fundamental Rights.  Human Rights Watch, December 6, 2017.







City and State Immigration Laws




In 2006 and 2007, numerous cities and towns across the U.S. such as Hazleton, PA; Farmers Branch, TX; San Bernadino, CA; Valley Park, MO, and Riverside, NJ passed local immigrant enforcement ordinances which prohibited landlords from renting to unauthorized immigrants.  Many of the cities were sued by civil rights groups for being discriminatory and unconstitutional. This mired these cities for years in expensive litigation that cost them millions of dollars.  Several federal Circuit Courts declared these ordinances unconstitutional.1

In March of 2014, the United States Supreme Court  declined to review two federal appellate decisions that struck down the local immigration enforcement ordinances in Hazleton, PA and Farmers Branch, TX. With its refusal to take up the cases, the Supreme Court brought to a close immigration litigation that lasted more than seven years, and thus established limitation on the role states and cities can play in the enforcement of immigration laws.1


Before 2012, many states passed legislation making it difficult for unauthorized immigrants to survive. Arizona’s S.B. 1070, and similar laws in Alabama and Georgia, criminalized unauthorized status and authorized state police to check the immigration status of anyone suspected of being in the United States without proper documentation. However, the Supreme Court struck down large portions of S.B. 1070 in 2012.


Since 2012, the emphasis of many state and local immigration laws has shifted from enforcement to the integration of unauthorized populations.  States and cities have passed many laws that increase the integration of unauthorized populations, including the extension of in-state college tuition and the provision of driver’s licenses and ID cards.2 The implementation of DACA, which permits many young unauthorized immigrants to work and gives them a reprieve from deportation, has encouraged states and cities to integrate unauthorized populations. DACA recipients can now receive driver’s licenses in every state and in-state tuition is allowed by 16 states and 4 universities.3





1.  Chisti, Muzaffar and Bergeron, Claire.  "Hazleton Immigration Ordinance That Began With a Bang Goes Out With a Whimper."  Migration Policy Institute, Policy Beat, March 28, 2014.




2.  Morse, Ann.  National Conference of State Legislatures.  2013 Immigration Report, January 20, 2014.  http://www.ncsl.org/research/immigration/2013-immigration-report.aspx



3.  Report on 2017 State Immigration Laws, January - June.  National Conference of State Legislatures, 7/12/2017. 







Immigrant and Customs Enforcement (ICE) Policies




ice police arrestICE's current aim is to deport millions of unauthorized immigrants.1 Under President Obama's administration, ICE was instructed to arrest immigrants only if they are a threat to public safety. In a February, 2017 memo, Matthew Albence, the head of the Immigration and Customs unit in charge of deportations, informed his 5,700 Enforcement and Removal Operations officers that, “effective immediately, ERO officers will take enforcement action against all removable aliens encountered in the course of their duties.2 ICE aims to deport unauthorized immigrants as quickly as possible. If immigrants want to challenge their deportation, ICE keeps them in prison for many months or even years3 as they wait to appear before an immigration judge.


 More than 800,000 college students have registered under Deferred Action for Childhood Arrivals (DACA) approved by President Obama in 2012. The Miami Herald reported that the White House said that President Trump will not support a new bipartisan plan to protect young undocumented immigrants from being placed back in line for deportation. The Miami Herald Editorial Board writes that "The possible end of DACA is a clear sign that not only dangerous criminals, but any undocumented immigrant, even if law-abiding and ambitious, is eligible for deportation."4





1.  Implementing the President's Border Security and Immigration Enforcement Improvement Policies.  February 20, 2017.


2. Rochabrun, Marcelo.  “ICE Officers Told to Take Action Against All Undocumented Immigrants Encountered While on Duty.”  Pro Publica, July 7, 2017


3. Arulanantham, Ahilan T.  Director of Advocacy and Legal Director at the ACLU of Southern California.  “Detained Immigrants Aren’t Awaiting Deportation.  They’re Awaiting Justice.”  Justice Not Jails:  A Program of the Interfaith Movement for Human Integrity, November 6, 2016.     http://justicenotjails.org/immigrant-detainees/


4. Miami Herald Editorial Board.  "DREAMers hope for amnesty is in danger."  7/19/17







Nationwide Response to ICE Policies



Nationwide, over 600 states, counties, and municipalities limit cooperation with Immigration and Customs Enforcement (ICE) officers.1 At least 53 counties do not allow the use of local resources to assist ICE in federal immigration enforcement. Many jurisdictions refuse to hold individuals in custody without probable cause based solely upon an ICE detainer request, and some limit ICE’s ability to interrogate immigrants in custody. All jurisdictions, however, share fingerprint data of people booked into their custody with Department of Homeland Security (DHS) as well as the FBI.


Minnesota, does not have a policy of noncooperation with ICE, but its two largest cities, Minneapolis and St. Paul do have such policies. ICE has not concentrated in MN or the Midwest in general because it does not have sufficient officers to cover all states thoroughly. Like many other states, Minnesota allows in state tuition at public colleges and issues drivers' licenses to undocumented immigrants. The state, Minneapolis, St Paul, and many other cities as well as foundations and nonprofit organizations are working to close big education and employment disparities between whites and people of color. These goals are opposite to the current administration's goal of deporting immigrants. President Trump is asking for 10,000 additional ICE officers so he can send them to the interior of the country and deport many of the undocumented immigrants living there.


Looking to Future Developments - States vary widely regarding the extent of ICE involvement in their state and city and county police cooperation with ICE.  Considerable research has already begun on how ICE involvement affects community stability and the economy of cities and counties.  Cities in states like Minnesota, which have had more limited ICE involvement, and indeed the state itself, should look closely at these studies and the goals, economy, and immigrants' backgrounds to determine what impact greater ICE involvement would have in the state.  It is especially important that the state, cities, and citizens convey harm that could be done to Minnesota by ICE activities to the senators and representatives that represent them in Congress.  As will be seen in the articles on further topics in this immigration series, so far research reports indicate that extensive ICE involvement in counties or cities and local police cooperation with ICE results in community instability, economic decline, and great stress on immigrants who are at risk of being deported.





1. CAP Immigration Team and Michael D. Nicholson.  "The Facts on Immigration Today:  2017 Edition."  April 20, 2017.   https://www.americanprogress.org/issues/immigration/reports/2017/04/20/430736/facts-immigration-today-2017-edition/








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By Lornet Turnbull
YES! Magazine
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