In 1996 President Bill Clinton signed into law the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)1. The bill was coupled with another piece of legislation that concerned the finances of the day-to-day operation of the entire federal government— so the need to keep the federal government operating likely played a role in the passage of the controversial laws.
IIRIRA eliminated key defenses against deportation and subjected many more immigrants, including legal permanent residents, to detention and deportation. It made it much more difficult for refugees to apply for asylum. It established minimum daily detention numbers and lowered the bar for deportable offenses; many crimes categorized as “aggravated felonies” in the immigration context are considered neither aggravated nor felonies in the criminal context. It also fundamentally changed seasonal migration patterns that existed the century prior and substantially impacted the agricultural labor market of the US.
One of the most controversial items in the bill, Title III, addressed the issue of undocumented aliens already inside U.S. borders. The enactment of “unlawful presence” created permanent restrictions on the ability of foreign nationals in the US to legalize their status by obtaining a visa. The act provides that any person who has been unlawfully present in the US for 180 days, but less than one year, must remain outside the US for three years unless granted a waiver (often referred to as a pardon). Any person who has been unlawfully present in the US for more than one year must reside outside the US for ten years unless they obtain a waiver. If the foreign national were to cross the border or attempt to cross the border to reenter the US without waiting the ten years and without an approved waiver will be permanently barred from ever obtaining legal immigration status in the US.
The required waivers are only available to individuals with US citizen or resident parents our spouses and only if they show that their citizen or resident spouse/parent will suffer extreme hardship in their absence. The process is not easy. A successful waiver application will usually require the foreign national to retain an attorney and spend thousands of dollars. The process takes years and if they are successful they still have to leave the US and attend an interview at the consulate in their country of citizenship with no guarantee they will be permitted to reenter the US.
Prior to the Obama administration’s creation of the provisional “stateside” waiver in 2014 the foreign national was required to wait overseas during the entire multi-year process of obtaining the waiver. Now the provisional I-601A waiver allows for unlawful presence waivers to be applied for by individuals still in the US, the wait times have more than doubled and in 2023, the posted processing times for such waivers is 38 months.
However, the Obama administration utilized IIRIRA for eight years in order to carry out the removal/deportation of 2.5 million people, including over 100,000 unaccompanied minor children. The Obama administration carried out more deportations of immigrants than any other presidency in US history, leading migrants’ rights activists to dub the president the “Deporter in Chief.” In 2014 at least 83 of the asylum seekers deported were killed shortly after the US returned them to the country where they said they feared being killed. Trump did the same and so on and so forth. IIRIRA will remain a valuable tool to expeditiously and quietly shew away inconvenient humanitarian crises politicians don’t want to deal with.
The Biden administration has admirably attempted to slow down the massive deportation machine. Unfortunately, his policies are just that, they are policy and not law, so they have been limited by the Courts upon review and more importantly, they are subject to change at any time. It is all but certain that the Biden-era prosecutorial discretion policies will change the moment he is out of the White House and then we will have millions of immigrants in removal proceedings and in the middle of other immigration processes that are suddenly facing a much more difficult challenge with much higher stakes.
Regardless of the outcome of the next election, the U.S. will continue to use IIRIRA to authorize fast-track deportations of South and Central American refugees. There isn’t much new to be said about IIRIRA, but it will continue to impact current policy in the US. IIRIRA gave Ron DeSantis the Authority to deny non-citizens driver’s licenses in the State of Florida (it expressly authorized the States to deny driver’s licenses to non-citizens if they so desired).
Like most bad laws, it unfortunately seems like it won’t be replaced any time soon. As the US ages it is going to continue to gather bad laws just like IIRIRA because our legislative process has become too heavily influenced by special interests and there simply isn’t any incentive to revisit issues that were already declared to be resolved by earlier law no matter how bad that law may be.
- Full text of IIRIRA ↩︎
- For more info on the Illegal Immigration Reform and Immigrant Responsibility Act [IIRIRA ] ↩︎