On September 30, 1996, crimmigration law became firmly embedded in the modern United States. That day, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) took effect. Adopted by a Republican Congress and signed by President Bill Clinton, IIRIRA stands as an example of bipartisan willingness to ratchet up the severity of violating immigration law. With Friday’s twentieth anniversary on my mind, I thought it worthwhile to revisit IIRIRA’s specific provisions and contextualize it within a larger string of strong-armed legislation that launched the crimmigration era.
First for a look at how IIRIRA changed the legal regime governing migrants’ lives.
Two provisions [in IIRIRA] created or facilitated programs that are now at the center of immigration law enforcement, both of which have important incidental effects on detention: the 287(g) and Secure Communities programs. IIRIRA’s § 133 added § 287(g) to the INA authorizing the INS to essentially deputize local law enforcement officers “in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers).” Used infrequently for the first decade after enactment, agreements pursuant to § 287(g) became commonplace under the Obama Administration, significantly affecting the detention population. In fiscal year 2009, for example, 12 percent (44,692 individuals) of people detained by ICE were identified through 287(g) programs. Building off earlier enactments, IIRIRA expanded the INS’s computerized database, known as the Automated Biometric Identification System (IDENT), specifically “to apply to illegal or criminal aliens apprehended nationwide.” Today, the IDENT database contains more than 148 million fingerprint records and, along with an FBI database, is one of two core repositories that ICE’s Secure Communities program taps to identify potentially removable individuals. Using records in the IDENT database, in fiscal year 2009 alone 20,824 people were taken into ICE custody through Secure Communities.
At the same time, IIRIRA contained another two provisions that radically altered the evolution of immigration detention and provided the statutory basis for two characteristics of today’s immigration detention regime: privatization and scale. Through IIRIRA, Congress required the INS—now DHS—to consider leasing or purchasing “existing prison, jail, detention center, or other comparable facilit[ies] suitable for such use.” Aside from strongly suggesting that prisons, jails, and so-called civil detention centers were equally “suitable” for holding immigration detainees, this provision facilitated the growing reliance on private prison corporations to meet the bed space needs of the INS and, later, DHS. More significantly, however, IIRIRA rendered innumerably more people subject to detention. The public law added § 236(c) to the INA requiring the arrest and detention of individuals believed to have violated a broad range of immigration law provisions, including most of the crime-based grounds of removal. The mandatory detention provision has undeniably become the central reason for today’s enormous immigration detention population.
César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA Law Review 1346, 1370-71 (2014) (citations omitted).
As this summary suggests, IIRIRA was monumental. But in its harshness and lasting impact, it was not unique. IIRIRA was only the most prominent among a series of pieces of legislation adopted during a ten-year span beginning in 1986 that, combined, made principles of penal severity a core component of the United States’ regulation of migrants and migration. The Anti-Drug Abuse Act of 1986, for example, created the legislative authorization that ICE would later use to issue hundreds of thousands of immigration detainers annually (until the courts dealt it a serious blow by declaring ICE’s practices unconstitutional). The Anti-Drug Abuse Act of 1988 followed with the addition of the “aggravated felony” concept. The Immigration Act of 1990 made it easier to move people from criminal confinement to civil immigration detention by requiring states to cooperate with INS investigations of people convicted of drug crimes. Under President Clinton, the Violent Crime Control and Law Enforcement Act of 1994 expanded the former INS’s civil immigration detention powers.
And then 1996 rolled around. Five months before IIRIRA became law, Congress and President Clinton teamed up to enact the Anti-terrorism and Effective Death Penalty Act (AEDPA). Though it is often overlooked in immigration law conversations, it is no less important to the story of how the traditional boundary between criminal law and immigration law has become ever more difficult to identify. AEDPA expanded the federal government’s power to detain migrants without their having the opportunity to obtain a bond by expanding the pool of people subject to mandatory detention to include any migrant convicted of any controlled substance offense. It added to the list of crimes defined as an “aggravated felony,” all of which move people directly into the immigration detention and deportation pipeline.
Together, these legislative enactments changed the very nature of law enforcement in the United States. No longer would criminal policing agents focus on traditional crimes while their civil counterparts in the INS (or later DHS) set their sights on potential immigration law violators. Instead, the same agents charged with securing our neighborhoods are frequently tasked with asking whether someone is supposed to be in the country. And the agents whose principal responsibility is to surveil cross-border movement are given the obligation to detain on a mass scale and police illicit drug activity.
In the twenty years since IIRIRA, the trend of penal severity that it emblematized has become the norm. The dominant rhetoric of the current presidential campaign suggests that this norm has become staunchly embedded in our political culture. If nothing else, perhaps marking IIRIRA’s twentieth anniversary can serve as a reminder that things haven’t always been that way.