The 1996 Immigration Laws and their Impact on Civil Rights

Ensuring fairness and justice in immigration policy has long been an important goal for the civil rights community. In recent years, however, the need to fight to protect the rights of immigrants has become especially urgent. In 1996, two major bills reforming national immigration laws were enacted: the Antiterrorism and Effective Death Penalty Act (AEDPA), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). These bills were touted as a response to the problems of illegal immigration, terrorism on U.S. soil, and criminal behavior in general. In reality, AEDPA and IIRIRA have amounted to an assault on the basic civil and human rights of immigrants.

Specifically, the LCCR is working to eliminate a number of harsh and discriminatory elements of the 1996 laws:

Mandatory, permanent deportation proceedings that treat long-term, legal immigrants convicted of minor first offenses as harshly as more serious offenders. The 1996 laws made virtually all criminal offenses, regardless of their severity, grounds for permanent deportation. The law requires that any person committing an “aggravated felony” is to be automatically deported. The definition of aggravated felony is used to encompass a wide variety of offenses, many of which are not as serious as the classification would imply. At the same time, the law eliminated the authority that immigration judges previously held in most cases to consider the individual circumstances of the immigrant and the offense committed. An immigration judge is no longer allowed to consider whether a legal immigrant has paid his debt to society, been rehabilitated, and gone on to become a useful, constructive member of his family and community. It no longer matters if an offense was nonviolent, took place long ago, or did not even result in any time in jail. Any relief for minor offenders, no matter how much they may deserve a second chance, has been eliminated in most cases under the 1996 reforms.

Detention provisions that require jailing, with no possibility for release, of most immigrants who have been brought into deportation proceedings. Detention policies under the 1996 laws also require that individual circumstances and the nature of the underlying offense be ignored, if an immigrant is alleged to have committed a criminal offense that could result in deportation. Immigrants are now mandatorily locked up while awaiting deportation, often for years, in harsh prison-like conditions, frequently hundreds or even thousands of miles away from their families and attorneys. Again, it makes no difference under the 1996 reforms if an immigrant did not even spend a single day in jail as part of his “criminal” punishment. In many instances, immigrants who cannot be deported because their home countries will not accept deportees remain locked up indefinitely, possibly even for life with no meaningful chance to seek release.

The elimination of the right of most immigrants to have INS decisions reviewed by federal courts. The 1996 laws severely undermined a cornerstone of the judicial system, the right to judicial review, by stripping federal courts of the authority to consider appeals of most INS rulings. As a result, the INS now has the final word on whether an immigrant will be denied benefits or deported.

Retroactive application of the harsh 1996 laws to cases in which the public interest is no longer served by deportation. In passing IIRIRA, Congress imposed penalties retroactively. In many cases, immigrants are now facing deportation for conduct that was not even a deportable offense at the time. In many other cases, immigrants pled guilty to offenses committed prior to the passage of the 1996 laws, relying on the fact that they could seek waivers of deportation under the law that existed at the time only to find now that such relief is no longer available. By applying new rules to old conduct, the 1996 laws have undermined, for immigrants, another fundamental aspect of our legal system: the ability to know what the law is and what the precise consequences of conduct under that law will be.

“Expedited removal” procedures that provide low-level INS employees with broad discretion to deny admission summarily, even to many asylum seekers. The 1996 laws permit the INS to act unilaterally to remove aliens who arrive at the border without proper documentation. Decisions under a new process known as exedited removal are made without any meaningful hearing, any chance to rebut allegations of impropriety or fraud, and with no right to legal assistance or even administrative or judicial review. Aliens who have been denied admission under these circumstances also find themselves barred from the United States for five years. The expedited removal process is particularly unfair to asylum seekers, who are quite often forced to flee for their lives before they can adequately get their paperwork in order. When an arriving alien claims asylum but lacks proper documentation, he will be granted an interview by an INS asylum officer who has virtually unfettered discretion to decide whether the alien will even be allowed to fully present his claim before an immigration judge. The lack of due process protections which characterize expedited removal makes asylum procedures very risky, since an asylum seeker may face real danger if returned to his homeland.

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