Illegal Immigration Reform and Immigrant Responsibility Act (1996)

The 1990s marked a period of renewed anti-immigration sentiment and fears of terrorism connected to the first World Trade Center bombing (1993), the Oklahoma City Bombing (1995), and tax revolts such as California's Proposition 187 (1994), which proposed removing access to all state aid for undocumented immigrants; it was found unconstitutional. In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which expanded the criminal grounds on which noncitizens, including permanent resident aliens, could be deported, and established provisions to expedite deporting criminal aliens through almost total curtailment of judicial review.

More aggressive policies toward criminal alien removal began with the 1988 Omnibus Anti-Drug Act (OADA). It stipulated that undocumented and permanent resident aliens convicted of “aggravated felonies,” including homicide, drug trafficking, arms trafficking, and rape were to be immediately deported, which was legally termed “expedited removal,” upon serving sentence. Access to a lawyer was not allowed, and expanded exclusion from reentry was implemented. OADA and subsequent law applied retroactively, and removed due process rights for noncitizens. An Institutional Removal Program (IRP) was organized to remove noncitizens who committed aggravated felony crimes upon sentence completion.

The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) classified an additional 50 categories of crime as aggravated felonies and mandated retroactive deportation or removal upon sentence completion. Under IIRIRA, any crime committed by an alien resulting in a sentence of more than one year, even a misdemeanor like drug possession, could result in removal. Although unauthorized entry over the U.S.-Mexico border or other land, sea, and air borders had previously been handled by deportation, IIRIRA established that mandatory detention should precede deportation. It mandated that the Immigration and Naturalization Service (now [Page 1136]under the Department of Homeland Security, with a subcomponent, the Immigration and Customs Enforcement) detain both unauthorized entrants and asylum applicants. Daniel Kanstroom has identified the impact of aggravated felonies and related deportation law on permanent resident and undocumented resident aliens as “post-entry social control.”

To implement identification of undocumented and criminal aliens, IIRIRA began the 287(g) program, in which state and local police can enter into a Memorandum of Agreement (MOA) with ICE. Officers trained for four weeks by ICE at the federal law enforcement training center are allowed to enforce immigration law. In the fall of 2011, 68 state and local MOAs were active, a low rate of cooperation.

The impact of changes in immigration law has been referred to as a “deportation regime” by Daniel Kanstroom. ICE has developed the Secure Communities program, which prioritizes criminal alien removal, and does not require a 287(g) MOA. It operates in 3,000 jurisdictions. ICE uses the Federal Bureau of Investigation (FBI) criminal database to match the records of criminal offenders and immigration databases to determine if an offender was unlawfully present or removable on criminal grounds. A chief objective of Secure Communities and ICE's overall removal strategies is to remove violent offenders, although it has primarily deported nonviolent offenders.

During the George W. Bush and Barack Obama administrations, Immigration and Customs Enforcement (ICE) has enforced the law with record levels of deportation. After September 11, 2001, in 2002, 71,686 criminal aliens were removed. Figures moved slightly higher until the Great Recession of 2008, when removals peaked at 114,415 (2008); 136,348 (2009); 195,772 (2010); and 216,698 (2011). In 2011, 396,906 noncitizens were deported. Reflecting aggravated felony provisions, 54.6 percent were criminal offenders. Other prominent categories were repeat immigration violators (19.6 percent), border removals (11.6 percent), and immigration fugitives (4.7 percent). Targeting noncitizen criminals is an ICE goal; offenders removed in 2012 included those who had served terms for homicide (1,119), sexual offenses (5,848), drug-related crimes (44,653), and driving under the influence (35,927).

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