Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA or IIRAIRA), Division C of Pub.L. 104–208 (text) (pdf), 110 Stat. 3009-546, enacted September 30, 1996, made major changes to the Immigration and Nationality Act (INA) of the United States, which the bill's proponents argued was mainly because of the rapidly-growing undocumented immigrant population in the country.[2] "These IIRIRA changes became effective on April 1, 1997."[1]

Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Other short titlesIIRIRA
Long titleAn Act making omnibus consolidated appropriations for the fiscal year ending September 30, 1997, and for other purposes.
Acronyms (colloquial)i-RAI-ruh
NicknamesOmnibus Consolidated Appropriations Act of 1997, "The Mexican Exclusionary Act of 1996":
Enacted bythe 104th United States Congress
EffectiveApril 1, 1997[1]
Citations
Public law104-208
Statutes at Large110 Stat. 3009 aka 110 Stat. 3009-546
Codification
Titles amended8 U.S.C.: Aliens and Nationality
U.S.C. sections amended
Legislative history
United States Supreme Court cases

Among the obvious changes made by the IIRIRA, the US Congress expanded the definition of the term aggravated felony by entailing a great many more crimes but also explicitly stated that the term "aggravated felony" must be applied only to convictions "for which the term of imprisonment was completed within the previous 15 years."[3][4] This appears to be consistent with "the Fifth, Eighth and 14th Amendments to the Constitution,"[5] including with the United Nations Convention against Torture (CAT).[6][7][8][9]

The IIRIRA combined the former "deportation proceedings" and "exclusion proceedings" into a single removal proceedings, which begin in immigration courts and may reach all the way up to the US Supreme Court.[10] In the meantime, Congress reaffirmed its historical statutory and mandatory relief to everyone who was admitted to the United States as a refugee under 8 U.S.C. § 1157(c).[7][8] Every illegal alien convicted of any aggravated felony is to be placed in expedited removal proceedings.[11] In exceptional circumstances, the removal proceedings can be reopened at any time and even from outside the United States.[10][12][13][14] That had never been clarified prior to IIRIRA.

U.S. President Bill 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." Some critics have argued that it punished U.S. citizens and noncitizens of all statuses "by eliminating due process from the overwhelming majority of removal cases and curtailing equitable relief from removal."[15]

Among other changes, IIRIRA gave the US Attorney General broad authority to construct barriers along the border between the United States and Mexico, and it authorized the construction of a secondary layer of border fencing to support the already-completed 14-mile primary fence. Construction of the secondary fence stalled because of environmental concerns raised by the California Coastal Commission.

Deportation and inadmissibility issues
Further information: Cancellation of removal and waiver of inadmissibility (United States)

According to the INA, the terms "inadmissible aliens" and "deportable aliens" are synonymous.[16] A lawful permanent resident (LPR) can either be an "alien" or a "national of the United States," which requires a case-by-case analysis and depends mainly on the number of continuous years he or she has spent in the United States as a legal immigrant (green card holder).[17][18][13] IIRIRA sufficiently protected every American against deportation from United States.[19]

In IIRIRA, Congress expressly states that the aggravated felony definition must be applied retroactively to all persons,[3] and reaffirms its historical statutory and mandatory relief to those persons who were admitted to the United States as refugees under 8 U.S.C. § 1157(c), even if they have been convicted of a particularly serious crime.[7][8][9]

The Board of Immigration Appeals (BIA) and the U.S. courts of appeals have held that for purposes of cancellation of removal and waivers of inadmissibility, the "stop-time rule" does not apply to any alien who committed his or her crime prior to April 1, 1997.[20][9] In other words, an LPR who committed a crime before IIRIRA's effective date was still effectively an LPR. This does not come into conflict with the aggravated felony definition, which plainly requires a conviction (not commission).

In INS v. St. Cyr (2001), the U.S. Supreme Court held that Congress had not intended IIRIRA to be applied retroactively against all past criminal convictions. The BIA extended relief against deportation to green card holders who had been convicted of an aggravated felony prior to April 1, 1997.[21][9] This BIA decision, however, plainly contradicts IIRIRA, which expressly states the following:

The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term [aggravated felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996.[3][4]

"The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.'"[22] IIRIRA's mandatory detention provisions have also been repeatedly challenged, with less success. The Reed Amendment (a provision of IIRIRA which excludes from the United States those people whom the Attorney General finds to have renounced American citizenship in order to avoid payment of taxes) also has been attacked as unconstitutional.[23]

In Zadvydas v. Davis (2001), the Supreme Court curtailed the government's ability to hold aliens in removal proceedings indefinitely.[24] A similar detention issue was addressed in Jennings v. Rodriguez (2018).[25]

Section 287(g)
Main article: Immigration and Nationality Act Section 287(g)

IIRIRA addressed the relationship between federal and local governments. Section 287(g) of the Act allows the U.S. Attorney General to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions pursuant to a Memorandum of Agreement. The Section does not simply deputize state and local law enforcement personnel to enforce immigration matters.[26] This provision had been implemented by local and state authorities in five states (California, Arizona, Alabama, Florida, and North Carolina) by the end of 2006.[27]

Higher education restrictions

Upon passage of this law, states were restricted from offering in-state tuition at public institutions to students who were not legally in the country.[28] Specifically, if a state allows undocumented immigrant students to be eligible for in-state tuition, then residents from other states must also be eligible for in-state tuition. Several states have passed tuition-equality laws by allowing anyone regardless of legal status to apply for in-state tuition if they meet the state's eligibility requirements.[29]

Voting

The Act made it a criminal offense for a noncitizen to vote in a federal election.[30]

Impact

A 2018 paper found that the Act reduced the health and mental health outcomes of Latin-American undocumented immigrants in the United States by escalating their fear that they would be deported.[31]

See also

References

This article in most part is based on law of the United States, including statutory and latest published case law.

  1. Othi v. Holder, 734 F.3d 259, 264-65 (4th Cir. 2013).
  2. "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved 2018-12-05.
  3. 8 U.S.C. § 1101(a)(43) ("The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.") (emphasis added); Matter of Vasquez-Muniz, 23 I&N Dec. 207, 211 (BIA 2002) (en banc) ("This penultimate sentence, governing the enumeration of crimes in section 101(a)(43) of the Act, refers the reader to all of the crimes 'described in' the aggravated felony provision."); Luna Torres v. Lynch, 578 U.S. ___, 136 S.Ct. 1623, 1627 (2016) ("The whole point of § 1101(a)(43)'s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law."); see also 8 CFR 1001.1(t) ("The term aggravated felony means a crime (or a conspiracy or attempt to commit a crime) described in section 101(a)(43) of the Act. This definition is applicable to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996, but shall apply under section 276(b) of the Act only to violations of section 276(a) of the Act occurring on or after that date.") (emphasis added).
  4. Zivkovic v. Holder, 724 F.3d 894, 911 (7th Cir. 2013) ("Because [Petitioner]'s aggravated felony convictions were more than a decade old before the 1988 statute took effect, they cannot be used as a ground for removal...."); Ledezma-Galicia v. Holder, 636 F.3d 1059, 1080 (9th Cir. 2010) ("[Petitioner] is not removable by reason of being an aggravated felon, because 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions, like [Petitioner]'s, that occurred prior to November 18, 1988."); but see Canto v. Holder, 593 F.3d 638, 640-42 (7th Cir. 2010) (good example of absurdity and violation of the U.S. Constitution).
  5. "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. pp. 806–7. Retrieved August 8, 2018. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution.... (emphasis added).
  6. "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved July 15, 2018. [The United States] shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (emphasis added).
  7. Matter of H-N-, 22 I&N Dec. 1039, 1040-45 (BIA 1999) (en banc) (case of a female Cambodian-American who was convicted of a particularly serious crime but "the Immigration Judge found [her] eligible for a waiver of inadmissibility, as well as for adjustment of status, and he granted her this relief from removal."); Matter of Jean, 23 I&N Dec. 373, 381 (A.G. 2002) ("Aliens, like the respondent, who have been admitted (or conditionally admitted) into the United States as refugees can seek an adjustment of status only under INA § 209."); INA § 209(c), 8 U.S.C. § 1159(c) ("The provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Security or the Attorney General may waive any other provision of [section 1182] ... with respect to such an alien for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.") (emphasis added); Nguyen v. Chertoff, 501 F.3d 107, 109-10 (2d Cir. 2007) (petition granted of a Vietnamese-American convicted of a particularly serious crime); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) ("The Equal Protection Clause of the Fourteenth Amendment commands that ... all persons similarly situated should be treated alike.").
  8. Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015) (collecting court cases) ("An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction.") (emphasis added); see also De Leon v. Lynch, 808 F.3d 1224, 1232 (10th Cir. 2015) ("[Petitioner] next claims that even if he is removable, he should nevertheless have been afforded the opportunity to apply for a waiver under 8 U.S.C. § 1182(h). Under controlling precedent from our court and the BIA's recent decision in Matter of J–H–J–, he is correct.") (emphasis added).
  9. "Board of Immigration Appeals". U.S. Dept. of Justice. March 16, 2018. Retrieved 2018-12-05. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. See also 8 CFR 1003.1(g) ("Decisions as precedents.") (eff. 2018); Citizens United v. FEC, 558 U.S. 310, 362 (2010) ("Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error."); Al-Sharif v. United States Citizenship and Immigration Services, 734 F.3d 207, 212 (3d Cir. 2013) (en banc) (same); Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) (same).
  10. 8 U.S.C. § 1101(a)(47); see generally Reyes Mata v. Lynch, No. 14-185, 576 U.S. ___, 135 S.Ct. 2150, 1253 (2015); Avalos-Suarez v. Whitaker, No. 16-72773 (9th Cir. Nov. 16, 2018) (unpublished) (case remanded to the BIA, which involved a legal claim over a 1993 order of deportation); Nassiri v. Sessions, No. 16-60718 (5th Cir. Dec. 14, 2017); Alimbaev v. Att'y, 872 F.3d 188, 194 (3d Cir. 2017); Agonafer v. Sessions, 859 F.3d 1198, 1202-03 (9th Cir. 2017).
  11. 8 U.S.C. § 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully....").
  12. 8 CFR 1003.2 ("Reopening or reconsideration before the Board of Immigration Appeals"); see also 8 U.S.C. § 1229a(c)(2) ("Burden on alien"); 8 U.S.C. § 1252(b)(4)(C) (explaining that "a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law....").
  13. Ahmadi v. Ashcroft, et al., No. 03-249 (E.D. Pa. Feb. 19, 2003) ("Petitioner in this habeas corpus proceeding, entered the United States on September 30, 1982 as a refugee from his native Afghanistan. Two years later, the Immigration and Naturalization Service (the 'INS') adjusted Petitioner's status to that of a lawful permanent resident.... The INS timely appealed the Immigration Judge's decision to the Board of Immigration Appeals (the 'BIA').") (Baylson, District Judge); Ahmadi v. Att'y Gen., 659 F. App'x 72 (3d Cir. 2016) (Slip Opinion, pp.2, 4 n.1) (invoking statutorily nullified case law, the court dismissed an obvious illegal deportation case by asserting that it lacks jurisdiction to review an unopposed United States nationality claim under 8 U.S.C. § 1252(b)(5) and 8 U.S.C. § 1252(f)(2) solely due to 8 U.S.C. § 1252(b)(1)) (non-precedential); Ahmadi v. Sessions, No. 16-73974 (9th Cir. Apr. 25, 2017) (same; unpublished single-paragraph order); Ahmadi v. Sessions, No. 17-2672 (2d Cir. Feb. 22, 2018) (same; unpublished single-paragraph order); cf. United States v. Wong, 575 U.S. ___, ___, 135 S.Ct. 1625, 1632 (2015) ("In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court's power only if Congress has clearly stated as much. Absent such a clear statement, ... courts should treat the restriction as nonjurisdictional.... And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional.") (citations, internal quotation marks, and brackets omitted) (emphasis added); see also Bibiano v. Lynch, 834 F.3d 966, 971 (9th Cir. 2016) ("Section 1252(b)(2) is a non-jurisdictional venue statute") (collecting cases) (emphasis added); Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc) (the court clarified "that § 1252(f)(2)'s standard for granting injunctive relief in removal proceedings trumps any contrary provision elsewhere in the law.").
  14. See generally Toor v. Lynch, 789 F.3d 1055, 1064-65 (9th Cir. 2015) ("The regulatory departure bar [(8 CFR 1003.2(d))] is invalid irrespective of the manner in which the movant departed the United States, as it conflicts with clear and unambiguous statutory text.") (collecting cases); see also Blandino-Medina v. Holder, 712 F.3d 1338, 1342 (9th Cir. 2013) ("An individual who has already been removed can satisfy the case or controversy requirement by raising a direct challenge to the removal order."); United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006) (same); Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004) (same); Zegarra-Gomez v. INS, 314 F.3d 1124, 1127 (9th Cir. 2003) (holding that because petitioner's inability to return to the United States for twenty years as a result of his removal was "a concrete disadvantage imposed as a matter of law, the fact of his deportation did not render the pending habeas petition moot").
  15. Kerwin, Donald (2018). "From IIRIRA to Trump: Connecting the Dots to the Current U.S. Immigration Policy Crisis". Journal on Migration and Human Security. https://doi.org/10.1177/2331502418786718: Center for Migration Studies. 6 (3): 192–204. doi:10.1177/2331502418786718.CS1 maint: location (link)
  16. 8 U.S.C. § 1229a(e)(2) ("The term 'removable' means—(A) in the case of an alien not admitted to the United States, that the alien is inadmissible under section 1182 of this title, or (B) in the case of an alien admitted to the United States, that the alien is deportable under section 1227 of this title."); Galindo v. Sessions, 897 F.3d 894, 897 (7th Cir. 2018); Tima v. Attorney General of the U.S., 903 F.3d 272, 277 (3d Cir. 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens.... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well.").
  17. "Lawful Permanent Residents (LPR)". U.S. Dept. of Homeland Security (DHS). April 24, 2018. Retrieved 2018-12-05.
  18. 8 U.S.C. § 1408 ("Nationals but not citizens of the United States at birth"); see also 8 U.S.C. § 1436 ("Nationals but not citizens...."); 12 CFR 268.205(a)(7) ("National refers to any individual who meets the requirements described in 8 U.S.C. 1408."); Alabama v. Bozeman, 533 U.S. 146, 153 (2001) ("The word 'shall' is ordinarily the language of command.") (internal quotation marks omitted).
  19. See generally Khalid v. Sessions, 904 F.3d 129, 131 (2d Cir. 2018); Ricketts v. Att'y Gen., 897 F.3d 491 (3d Cir. 2018); 8 U.S.C. § 1252(b)(5) ("Treatment of nationality claims"); see also 8 U.S.C. § 1101(a)(13)(C)(v) (eff. April 1, 1997) (stating that an LPR, especially a wrongfully-deported LPR, is permitted to reenter the United States by any means whatsoever, including with a grant of "relief under section 1182(h) or 1229b(a) of this title....") (emphasis added); accord United States v. Aguilera-Rios, 769 F.3d 626, 628-29 (9th Cir. 2014) ("[Petitioner] was convicted of a California firearms offense, removed from the United States on the basis of that conviction, and, when he returned to the country, tried and convicted of illegal reentry under 8 U.S.C. § 1326. He contends that his prior removal order was invalid because his conviction ... was not a categorical match for the Immigration and Nationality Act's ('INA') firearms offense. We agree that he was not originally removable as charged, and so could not be convicted of illegal reentry."); see also Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (en banc) (A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one 'referred to in section 212(a)(2)' and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal."); Vartelas v. Holder, 566 U.S. 257, 262 (2012).
  20. See generally, Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) (en banc) ("Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an offense must be one 'referred to in section 212(a)(2)' of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal."); Nguyen v. Sessions, 901 F.3d 1093 (9th Cir. 2018); Lopez v. Sessions, 901 F.3d 1071, 1077 (9th Cir. 2018) ("As discussed above, the structure and text of the statute indicate that the fact of conviction (not the underlying conduct) is the relevant transaction for purposes of the retroactivity analysis."); Esquivel v. Lynch, 803 F.3d 699, 701 (5th Cir. 2015); Calix v. Lynch, 784 F.3d 1000, 1011-12 (5th Cir. 2015); Jaghoori v. Holder, 772 F.3d 764 (4th Cir. 2014); Jeudy v. Holder, 768 F.3d 595 (7th Cir. 2014); Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006).
  21. Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014)
  22. NLRB v. SW General, Inc., No. 15-1251, 580 U.S. ___, 137 S.Ct. 929, 939 (2017); see also In re JMC Telecom LLC, 416 B.R. 738, 743 (C.D. Cal. 2009) (explaining that "the phrase 'notwithstanding any other provision of law' expresses the legislative intent to override all contrary statutory and decisional law.") (internal quotation marks and brackets omitted) (emphasis added); In re Partida, 862 F.3d 909, 912 (9th Cir. 2017) ("That is the function and purpose of the 'notwithstanding' clause."); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1083 (9th Cir. 2014) ("As a general matter, 'notwithstanding' clauses nullify conflicting provisions of law."); Jones v. United States, No. 08-645C, p.4-5 (Fed. Cl. Sep. 14, 2009); Kucana v. Holder, 558 U.S. 233, 238-39 n.1 (2010); Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (collecting court cases).
  23. Michelle Leigh Carter, Giving Taxpatriates the Boot, Permanently: The Reed Amendment Unconstitutionally Infringes on the Fundamental Right to Expatriate, 36 Ga. L. Rev. 835 (2002).
  24. Zadvydas v. Davis, 533 U.S. 678 (2001).
  25. Jennings v. Rodriguez, No. 15-1204, 583 U.S. ___ (2018).
  26. http://www.ice.gov/doclib/pi/news/factsheets/060816dc287gfactsheet.pdf Archived September 25, 2006, at the Wayback Machine
  27. Zezima, Katie (December 13, 2006). "Massachusetts Set for Its Officers to Enforce Immigration Law". New York Times.
  28. Pérez, Zenen Jaimes (2014). Removing Barriers to Higher Education for Undocumented Students (PDF). Center for American Progress.
  29. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 104th Cong. 1st sess. (September 30, 1996).
  30. 18 U.S.C. § 611
  31. Wang, Julia Shu-Huah; Kaushal, Neeraj (April 2018). "Health and Mental Health Effects of Local Immigration Enforcement". NBER Working Paper No. 24487. doi:10.3386/w24487.
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