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Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Other short titles
An Act making omnibus consolidated appropriations for the fiscal year ending September 30, 1997, and for other purposes.
Reported by the joint conference committee on September 28, 1996; agreed to by the House on September 28, 1996 (370-37, Roll call vote 455, via Clerk.House.gov) and by the Senate on September 30, 1996 (Agreed voice vote)
Signed into law by PresidentBill Clintonon September 30, 1996
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". Some critics have argued it punished US citizens and noncitizens of all statuses "by eliminating due process from the overwhelming majority of removal cases and curtailing equitable relief from removal."
Among other changes, IIRIRA gave the U.S. 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.
In IIRIRA, Congress expressly states that the aggravated felony definition must be applied retroactively to all persons, 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.
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. This BIA decision, however, plainly contradicts IIRIRA, which expressly states the following:
The term [aggravated felony] applies to an offense described in this paragraphwhether in violation of Federal or State lawand applies to such an offensein violation of the law of a foreign countryfor 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.
"The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.'" 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.
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. 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.
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. 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.
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.
^ abc8 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 C.F.R.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).
^ abZivkovic 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).
^"Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved 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).
^ abcMatter 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).
^8 U.S.C.§ 1365(b) ("An illegal alien ... is any alien ... who is in the United States unlawfully....").
^8 C.F.R.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....").
^See generally Toor v. Lynch, 789 F.3d 1055, 1064-65 (9th Cir. 2015) ("The regulatory departure bar [(8 C.F.R.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").
^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.").
^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)or1229b(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, 566U.S.257, 262 (2012).