The border crackdown and the legal gauntlet for newcomers was crafted under the Bill Clinton administration in the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). But a generation later, these 1996 immigration laws are being challenged by activists fighting to dismantle the policies that Trump has ruthlessly exploited to brutalize immigrant communities.
The Antiterrorism and Effective Death Penalty Act and Illegal Immigration Reform and Immigrant Responsibility Act were pushed through Congress by a Republican majority amid a wave of anti-crime legislation under the Clinton administration, reflecting a bipartisan focus in Washington to “get tough on crime.” In the subsequent years, its harshest strictures drastically changed the legal landscape for non-citizens. First, the laws expanded the types of crimes that qualify as “deportable offenses” to a wide range of state-level crimes. The laws also imposed strict rules for mandatory detention and deportation, which automatically limited one’s access to court review for a deportation — a measure that paralleled the Clinton-era mandatory-minimum sentencing rules that helped fuel mass incarceration. Even if not deported, green-card holders and undocumented immigrants with criminal records could still be barred from adjusting their status to legal residence or citizenship in the future.
The legal fulcrum of the 1996 laws revolves around so-called “aggravated felonies” — an expansive category that includes many nonviolent offenses such as theft and tax fraud. As a result, for over two decades, immigrants with extremely minor convictions — for example, those who were nabbed as teens for carrying a small amount of marijuana — could face deportation in their 40s. When an immigrant survivor of domestic violence is inadvertently arrested along with her abuser after an assault, she could get swept from a local jail cell into ICE detention.
Aside from aggravated felonies, both undocumented immigrants and legal permanent residents are subject to deportation on other criminal grounds, such as so-called “crimes involving moral turpitude,” a category that could include lower-level violations that carry a maximum state sentence of a year or more, like some forms of welfare fraud. As Human Rights Watch reported, a legal resident and father of three from El Salvador got deported due to a combination of two misdemeanors. (The two convictions — for breaking into a car and shoplifting eye drops — had resulted in a fine and two months’ imprisonment under state law, yet in combination, added up to a deportable offense.)
The laws cast long shadows across generations of broken families. A study by the Urban Institute on six sites of ICE worksite raids in Arkansas, California, Florida, Iowa, Massachusetts and Nebraska found that household income declined on average by some 70 percent in the first six months after a migrant householder’s arrest. On top of the economic losses, the stress of losing a parent has led to psychological trauma for children, family instability, and potentially even homelessness or placement in foster care.
For immigrants ensnared in the “aggravated felony” dragnet, the 1996 laws tighten the deportation sieve by sharply restricting judges’ power to grant waivers that could shield an individual from deportation based on a criminal conviction. Originally, green-card holders who had at least seven years of residence could thwart a deportation order by presenting extenuating factors, such as ties to their family and community in the U.S., or conversely, negative consequences that would result from deportation, such as the removal of a family’s sole breadwinner.
The Obama administration made ample use of the post-1996 deportation regime, carrying out some 3 million deportations and locking up tens of thousands in prison-like detention centers. The Trump administration has further capitalized on the 1996 laws by foreclosing other avenues for reprieve, expanding family detention and, through a recent court decision, extending ICE’s power to apprehend immigrants held in local jails.
The consequences of the 1996 laws are deepened by the legal opacity of criminal proceedings. Often, immigrants are pressured to plead guilty to lessen their penalty, but advocates warn that defense attorneys might fail to properly inform clients of the immigration consequences, so they might not realize the true cost of their guilty plea until they are released from prison and immediately routed into ICE custody. Some live in a legal limbo with a lapsed deportation order that could be revived at any point.
According to Southeast Asia Resource Action Center, about 13,000 members of the U.S.’s Southeast Asian refugee community have been given final deportation orders due to criminal convictions from many years ago. Many of them have been in the country since early childhood and have no cultural or family connections to the homelands that their parents fled amid conflict and persecution. Similarly, Black immigrants are especially vulnerable to the 1996 laws; they make up just one-tenth of all immigrants, but roughly a fifth of those targeted for deportation based on criminal convictions.
The growing backlash against the 1996 laws parallels a shift in the political discourse on “zero tolerance” criminal policies that fueled mass incarceration and the war on drugs in the 1990s. Noting that both deportation and imprisonment threaten communities of color, Benita Jain, supervising attorney of the Immigrant Defense Project, says, “if we’re going to push back against mass incarceration, we need to push back against mass deportation, because these systems are so integrally related to each other.”
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