President Donald Trump has pledged to expand the U.S. deportation system so that anyone accused of a criminal offens 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 deportation2 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.
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 other 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 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 deportation.8
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.
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.