Introduction

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was enacted in 1996 by President Clinton. The policy revised the former Immigration and Nationality Acts of 1952 and 1965 by reconstructing exclusion and deportation proceedings for immigrants migrating to America and immigrants already residing in America. Exclusion proceedings are hearings in which an immigrant must defend their intentions for immigrating to America. Deportation proceedings are hearings held for immigrants who have committed actions that deem them deportable from the country, such as unlawful entry, criminal convictions and fraud. With IIRIRA, exclusion proceedings and deportation proceedings were combined into a new proceeding: removal proceedings.

Process of Removal Hearings

Removal hearings, more commonly known as deportation hearings, are held in front of a court judge. The judge conducts the proceedings that establish whether an immigrant will be removed from the country, commonly known as deportation. The removal proceeding begins with a notice to appear (NTA) sent to the noncitizen, which includes the individual’s date of entry into the United States and original country of citizenship, as well as charge of removability (the reasoning as to why the immigrant is being called to court). It also includes the date of the noncitizens master calendar hearing.

In the master calendar hearing, a judge does an overview of the charge of removability which is used to determine whether the non-citizen has a realistic case against removal. The judge may either:

1. order the deportation of a noncitizen if they deem there is a lack of basis for relief
2. move onto the next step of the removal process, which is called the individual hearing

Under IIRIRA, Non-citizens are allowed to have an attorney represent them during the master calendar hearing and they are not guaranteed counsel if they cannot afford one.

In the individual hearing, a non-citizen has the opportunity to defend themselves against their charge of removability in front of the judge. The case against the non-citizen is presented by a government official. The individual hearing includes a series of cross-examinations and testimonies. The immigration judge may issue subpoenas to request the presence of witnesses and evidence. The judge then renders a verdict on whether the non-citizen is deported.

Reasoning for Enacting IIRIRA

In general, the the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 strengthened previous American immigration policy by 

1. expanding the grounds for deportation
2. placing an emphasis on the deportation of illegal immigrants

Then-president Clinton justified the IIRIRA by citing the 1993 World Trade Center Bombing perpetrated by foreign terrorists. Thus, IIRIRA was signed as a measure to prevent people migrating to the United States with ill intentions, and deporting ill-intended immigrants residing in America.

Canceling Removal Hearings

Prior to the enacting of IIRIRA, aliens were allowed to obtain a “suspension of deportation”, or an opportunity to prevent their deportation. However, the suspension of deportation did not distinguish between “permanent residents” and “nonpermanent residents,” which allowed for immigrants of all citizenship statuses to appeal their removal hearings. Suspensions of deportation were replaced by cancellations of removals. After 1996, permanent and nonpermanent residents used different processes to cancel a removal.

Permanent residents, or documented immigrants, can request to cancel their removal if they:

1. have resided lawfully in the United States for at least 5 years
2. have resided in the United States for at least 7 years after migration
3. have not been convicted of any aggravated felonies

Nonpermanent residents, or undocumented immigrants, can request to cancel their removal if they:

1. have resided in the United States for at least 10 years
2. have shown “good moral character”
3. have not been convicted of any aggravated felonies
4. prove their deportation would be a “exceptional and extremely unusual hardship” to any citizen family members they may have (parent, spouse, or children)

Immigration judges are limited to canceling the removal of 4,000 undocumented immigrants each year. That means, for example, out of the 60,588 undocumented immigrants that applied for cancellations during the Trump administration, policy allowed for only 4,000 of these applicants to receive cancellations. The “cap” on cancellations, as well as a general strengthening of immigration policy due to IIRIRA directly impacted deportation numbers—data collected shows that the number of removals increased 151% from 1996 to 1998—from 69,680 immigrants (documented and undocumented) to 174,813.

Arguments in Favor of IIRIRA

Proponents of IIRIRA argue that the legislation prevents illegal immigration and protects legal immigrants. The policy expanded border control by authorizing 5,000 new border patrol agents by 2001 and 300 additional immigration investigators focused on ending illegal immigration. The grounds for deportation were also expanded. Under IIRIRA, the term “aggravated felony” included any crime with a punishment of a year or longer (as opposed to the previous five year punishment or longer). Data collected by the Pew Research Center concludes that there was an increase of deportations following the 1996 policy.

Proponents also argue the removal process streamlined the deportation, saving time and resources. Previously, the deportation process was dependent on every individual immigrant’s circumstances. Post-IIRIRA, all immigrants—those applying to immigrate, those living in America, and those who immigrated illegally—are all subject to the same removal proceedings. 

Arguments Against IIRIRA

Many believe that IIRIRA undermines the due process clause due to the expansion of deportable offenses that criminalize immigrants. For example, IIRIRA expanded the definition of “aggravated felony”, encompassing crimes that have a sentence of at least a year. This leads to documented immigrants who plead guilty to minor crimes being labeled as aggravated felons and deported. 

Additionally, some contend that the policy made it difficult for noncitizens to become naturalized. After IIRIRA, an undocumented immigrant could no longer directly apply for citizenship.