September 30th is an anniversary that went virtually unnoticed. It marked 15 years since the Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). For many practicing young lawyers who came into the field wanting to keep families united, this law suddenly changed the playing field tipping it in a way that made it even harder, and in many cases impossible, to seek justice. IIRAIRA made practicing immigration law that much more complex.
I’m not quite sure where to start.
This blog could be devoted to how IIRAIRA removed justice from the immigration courts by stripping judges of their ability to evaluate individual immigrants and their contributions to America.
Or it could focus on the married couples and families torn apart as a result of IIRAIRA’s punitive bars to re-admission which apply to foreign nationals who have overstayed their visas in the U.S. Added to the law as deterrent to illegal immigration, the bars have clearly had the reverse effect, serving instead as an incentive for people to hunker down and remain in the U.S. unlawfully rather than be separated from their U.S. citizen spouses and children.
Or this blog could describe the stories of countless immigrants who gave up their fight for justice in the immigration courts rather than languish for months, even years, in mandatory detention because IIRAIRA denied them reasonable bail.
Or it could describe how IIRAIRA, coupled with the anti-immigrant panic that gripped the nation after 9/11, led to a virtual police state for immigrants; an America where midnight warrantless arrests, secret trials, and special registrations of distinct ethnic groups were the norm.
Finally, this blog could make the argument that the ramifications of IIRAIRA’s unduly harsh provisions have not been limited to the courtrooms, detention centers, or ports of entry. So too, have business visa petitions been subject to years and years of increasingly restrictive agency interpretation and adjudications which have only served to stifle education, innovation, and entrepreneurship.
Today a key author of the law, Rep. Lamar Smith, now chairs the House Judiciary Committee. A few years after IIRAIRA was enacted Smith signed a letter to then-Attorney General Janet Reno calling for more careful use of prosecutorial discretion. The plea never would have been necessary but for the harsh consequences of IIRAIRA, which was spreading injustice while doing little to improve America’s immigration system.
In the end, the lesson of IIRAIRA is that good immigration policy cannot be made by slapping together specious sound bites and talking points. That just makes an already dysfunctional immigration system more dysfunctional. America deserves immigration solutions, not more detention, deportation, and exclusion. We don’t need more IIRAIRA’s. We need a comprehensive policy that secures the border, keeps our communities safe, protects America’s economic edge, and restores and protects due process.
Let’s hope Lamar Smith and the other sponsors of IIRAIRA have learned this lesson, too.