From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis

Donald Kerwin
Center for Migration Studies

Editorial Credit: Drop of Light / Shutterstock.com

From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis

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EXECUTIVE SUMMARY

When signing into law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, or “the Act”),[1] President William J. Clinton asserted that the legislation strengthened “the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system — without punishing those living in the United States legally” (Clinton 1996). In fact, the Act has severely punished US citizens and noncitizens of all statuses. It has also eroded the rule of law by eliminating due process from the overwhelming majority of removal cases, curtailing equitable relief from removal, mandating detention (without individualized custody determinations) for broad swaths of those facing deportation, and erecting insurmountable, technical roadblocks to asylum. In addition, it created new immigration-related crimes and established “the concept of ‘criminal alienhood,’” which has “slowly, but purposefully” conflated criminality and lack of immigration status (Abrego et al. 2017, 695). It also conditioned family reunification on income, divided mixed-status families, and consigned other families to marginal and insecure lives in the United States (Lopez 2017, 246). Finally, it created the 287(g) program that enlists state and local law enforcement agencies in immigration enforcement and drives a wedge between police and immigrant communities.

The trend of “cracking down” on immigrants did not begin with IIRIRA. The Anti-Drug Abuse Act of 1986, the Anti-Drug Abuse Act of 1988, and the 1990 Immigration Act, for example, expanded deportable offenses (Abrego et al. 2017, 697; Macías-Rojas 2018, 3–4). IIRIRA, however, significantly “ratchet[ed] up” the “punitive aspects of US immigration law already in place” (Abrego et al. 2017, 702), and erected much of the legal and operational infrastructure that underlies the Trump administration’s plan to remove millions of undocumented residents and their families, to terrify others into leaving “voluntarily,” and to slash legal immigration.

In 2016, the Center for Migration Studies of New York (CMS) issued a call for papers to examine IIRIRA’s multifaceted consequences.[2] Between March 2017 and January 2018, CMS published eight papers from this collection in its Journal on Migration and Human Security (JMHS). The papers cover the political conditions that gave rise to IIRIRA, and the Act’s impact on immigrants, families, communities, and the US immigration system. This article draws on these papers — as well as sources closer to IIRIRA’s passage and implementation — to describe how the Act transformed US immigration policies and laid the groundwork for the Trump administration’s policies.[3] After a brief discussion of IIRIRA’s origins, the article discusses the law’s effects and subsequent policies related to the growth of the US immigration enforcement apparatus, removal, asylum, detention, the criminal prosecution of immigrants, the treatment of immigrant families, and joint federal-state enforcement activities.

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[1] Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).

[2] An expert project advisory group helped to shape the call for papers and to evaluate the submissions. This group included Aixa Cintrón-Vélez, program director, Russell Sage Foundation; Mathew Coleman, associate professor of geography, The Ohio State University; Katherine M. Donato, Donald G. Herzberg Chair in International Migration and director of the Institute for the Study of International Migration in the School of Foreign Service, Georgetown University; Megan French-Marcelin, fair hiring project coordinator, JustLeadershipUSA; Tonya Golash-Boza, associate professor of sociology, University of California, Merced; Josiah Heyman, director of the Center for Interamerican and Border Studies, professor of anthropology, and Endowed Professor of Border Trade Issues, The University of Texas at El Paso; John Hoeffner and Michele Pistone, associate editors, Journal on Migration and Human Security; David Dyssegaard Kallick, deputy director and director of immigration research, Fiscal Policy Institute; M. Brinton Lykes, co-director, Center for Human Rights and International Justice, and professor, Applied Developmental and Educational Psychology, Boston College; Rhonda Ortiz, managing director, Program for Environmental and Regional Equity and the Center for the Study of Immigrant Integration, University of Southern California; Manuel Pastor, professor of sociology and American Studies and Ethnicity, director of the Program for Environmental and Regional Equity (PERE), and director of the Center for the Study of Immigrant Integration (CSII), University of Southern California; Judy Rabinovitz, deputy director of the Immigrants’ Rights Project, American Civil Liberties Union; Rubén Rumbaut, Distinguished Professor of Sociology, University of California, Irvine; and Tara Watson, professor of economics and chair of public health, Williams College. CMS particularly thanks Judy Rabinovitz for proposing a series of research papers along these lines.

[3] Although not discussed in this article, IIRIRA laid the groundwork for the development of an automated exit-entry system to screen and track foreign visitors. Whereas the Immigration Reform and Control Act of 1986 criminalized the hiring of unauthorized workers, IIRIRA authorized three four-year pilot programs to screen employees for work eligibility. The Basic Pilot program ultimately evolved into E-Verify, the federal government’s online employment verification system. IIRIRA also created the Student and Exchange Visitor Information System (SEVIS), which collects biographic information on foreign-born students, exchange visitors, and their dependents.