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

Abstract

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.