Tue Aug 1, 2017 by Anil Kalhan
SYMPOSIUM VOLUME: Twenty Years After the 1996 Immigration Laws, Drexel Law Review, Vol. 9 No. 2 (Spring 2017)
Revisiting the 1996 Experiment in Comprehensive Immigration Severity in The Age Of Trump
by: Anil Kalhan | download this article (pdf)The Trump administration’s aggressive, wide-ranging effort to crack down on immigration—which, unlike some of its other initiatives, most certainly cannot be fairly characterized as seeking to “deconstruct†the administrative state—involves a somewhat complicated relationship with what came before. On the one hand, the new administration’s sweeping, high-profile immigration enforcement initiatives—along with its inflammatory anti-immigrant rhetoric—mark the ascendance of immigration restrictionism to the highest levels of the executive branch to an extent that is entirely without modern precedent. On the other hand, the actual strategies that the Trump administration has utilized to carry out this crackdown, to date, have been facilitated by existing legal authority and administrative institutions inherited from its predecessors, both Republican and Democratic. Perhaps most notably, the Trump administration’s immigration strategies have deep roots in the year 1996, when a Democratic president signed into law a series of statutes passed by a Republican-controlled Congress which instituted far-reaching changes to the immigration laws that the Trump administration has relied upon heavily when developing its own immigration control strategies.
Twenty years after the enactment of the 1996 laws, with immigration once again the subject of intense public controversy, the contributions to this symposium examine the origins and operation of the 1996 laws and their broader legacy and significance today. Convening only two weeks before the 2016 presidential election, the symposium participants could not specifically anticipate the aggressive immigration enforcement strategies that would be instituted during the first week of the new presidential administration in January 2017. At the same time, the participants were clear-eyed about the legacy of the 1996 immigration laws, recognizing that regardless of the outcome of the election, the legal and administrative regime established by those laws—and subsequently expanded and consolidated under both Republican and Democratic administrations—almost certainly would continue to cast a long shadow over immigration policy for years to come. As some of the contributors to this symposium observe, the prospects for meaningful immigration reform might ultimately be greater than they have initially appeared in the early months following the 2016 election. However, whatever various forms that such future immigration reform efforts might take, they inevitably will need to contend directly with the legacy of the 1996 experiment in comprehensive immigration severity.
Backlash, Big Stakes, and Bad Laws: How the Right Went for Broke and the Left Fought Back in the Fight Over the 1996 Immigration Laws
by: Frank Sharry | download this article (pdf)This Article reflects upon the political contestation that led to the enactment of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, contextualizing the anti-immigration backlash and debates. Further, this Article discusses some of the ways in which immigration advocates sought to respond to that backlash, sometimes controversially. Finally, the Article considers lessons to be learned for contemporary discussions over immigration reform, highlighting the changing political landscape and available paths through which advocates might successfully achieve fair and meaningful immigration reform.
The 1996 Immigration Laws Come of Age
by: Jennifer M. Chacón | download this article (pdf)Twenty-one years ago, in direct response to an attack perpetrated by Timothy McVeigh, a U.S. citizen and anti-government terrorist, Congress perversely enacted a set of punitive laws aimed not at white nationalists, but at immigrants. These 1996 laws generated three important shifts in immigration law and policy by radically expanding grounds for deportability while shrinking paths to deportation relief, creating a substantial role for sub-federal governmental entities in immigration investigation and enforcement, and rendering lawful permanent resident status more precarious. Simultaneously, Congress prompted the ad hoc creation of a host of liminal legal statuses bestowed by Executive Branch officials seeking to moderate the harsh effects of the laws. The 1996 laws significantly expanded the reach of the carceral state, particularly with respect to foreign nationals, while simultaneously kneecapping federal and state social support for immigrants. In short, the legal regime established in 1996 ushered in a new era of immigration severity and the resulting enforcement policies soon followed the path laid out in the misguided criminal enforcement policies of the wars on crime and drugs. Like the sweeping crime bills that had preceded them, the 1996 laws generated a highly racialized system of enforcement purportedly justified by crime control imperatives. Like those earlier laws, the 1996 laws have had little measurable impact on public safety, even as they have normalized vast systems of carceral control over immigrant communities. By systemically promoting a narrative that equated immigrants and crime, these laws laid the groundwork for the ultimate electoral triumph of Donald J. Trump in the presidential election of 2016.
Zone of Nondeference: Chevron and Deportation for a Crime
by: Rebecca Sharpless | download this article (pdf)The U.S. Supreme Court lacks a jurisprudence for when courts should defer to immigration agency interpretations of civil removal statutes that involve criminal law terms or otherwise require analysis of criminal law. This Article represents a first step toward such a jurisprudence, arguing for an expansive principle of nondeference in cases involving ambiguity in the scope of crime-based removal statutes. The zone of nondeference includes not only statutes like the aggravated felony provision that have both civil and criminal application, but all removal grounds premised on a crime. The animating principles of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. as well as the rationales behind both the ban on deference to criminal prosecutors and the criminal and immigration rules of lenity all support the conclusion that courts should not defer to agency interpretations of crime-based removal grounds.
Barring Survivors of Domestic Violence from Food Security: The Unintended Consequences of 1996 Welfare and Immigration Reform
by: Claire R. Thomas and Ernie Collette | download this article (pdf)During the 1990s, Congress amended the Immigration and Nationality Act (“INAâ€) to create forms of immigration relief for previously neglected vulnerable groups. One such group—survivors of domestic violence—was aided through the Violence Against Women Act (“VAWAâ€), which amended the INA to allow abused spouses, children, and parents of U.S. citizens or lawful permanent residents to self-petition for family-based immigration benefits without the abuser’s knowledge. Both abused female and male spouses are able to receive immigration benefits under VAWA, as well as spouses in same-sex marriages.
Despite protections in immigration law for survivors of domestic violence, two other acts—the Professional Responsibility and Work Opportunity Reconciliation Act (“PWORAâ€) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRAâ€)—which also passed in the 1990s fundamentally changed immigration policy and made it more difficult for members of these vulnerable groups to access public benefits.
This Article will focus on the “unintended consequences†that both of these Acts created by excluding vulnerable groups from access to the Supplemental Nutrition Assistance Program (“SNAPâ€). By comparing public benefits access for categories of immigrants, such as survivors of domestic violence, trafficking, and those who obtained asylum protection, this Article will advocate for reforms at the federal, state, and local level to increase access to food security for vulnerable groups.
The Future Relief of Immigration Law
by: Jill E. Family | download this article (pdf)Immigration law is in need of relief. Among the many problems affecting immigration law is the lack of respite from removal. The removal grounds—the characteristics and acts that render someone removable from the United States—are extremely broad and rigid. The only available penalty is removal. There is little proportionality in immigration law and qualifying for respite once one is determined to be removable is very difficult. This Article explores the lack of relief from removal in immigration law and shows how its stingy availability sheds light on other, broader problems afflicting immigration law. The current state of relief from removal helps to understand the conflicting signals of immigration law, the dysfunction of the immigration adjudication system, and the role of sovereignty in immigration law. This Article is a part of a symposium on the twentieth anniversary of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.