America's 20-Year Immigration Crack Down: The Effects of IIRIRA


September 30, 2016 will mark the 20th anniversary of the enactment of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996. IIRIRA fundamentally changed the U.S. immigration system. Signed into law by President Bill Clinton, IIRIRA was the product of the newly elected Republican majorities in the House and Senate. As America’s last major immigration reform legislation, IIRIRA included sweeping revisions of the U.S. immigration system. Some of IIRIRA’s most critical changes were to restrict legal immigration by creating harsh penalties for immigration violations.

One feature of IIRIRA that immigration attorneys face regularly is the creation of the “3-year,” “10-year,” and “permanent bars.” Codified at INA § 212(a)(9)(B)(i), IIRIRA made anyone who is “unlawfully present” for six-months or one-year “inadmissible,” meaning ineligible to obtain a temporary or permanent visa, for three and ten-years respectively. The 10-year bar especially is the major roadblock that prevents many undocumented immigrants with U.S. citizen spouses, parents, or even children, ineligible to legalize their status. The “bars” operate upon an immigrant’s departure from the U.S., which means that an undocumented immigrant who entered the U.S. without authorization in the U.S. and who has resided for over one-year without status cannot obtain his immigrant visa at the U.S. embassy or consulate abroad even through an immediate family relationships. While a wavier is available based on demonstrated “extreme hardship” to U.S. citizen or legal resident parents or spouses (note, the waiver of 3-year and 10-year bars is not available based on hardship to U.S. citizen or resident children), these waiver applications are difficult to obtain and usually require significant time and financial expenditures to obtain approval. Furthermore, an undocumented immigrant who entered the U.S. without authorization after triggering the 10-year bar or after being removed from the U.S. is not eligible to reenter legally, and a waiver can only be filed after demonstrating he or she has physically resided outside the U.S. for 10 years.

Another major feature of IIRIRA was the broad expansion of the term “aggravated felony” and redefinition of the terms “conviction” and “sentence.” Under U.S. immigration law, a foreign national—whether he is undocumented or a lawful permanent resident—may be removed through expedited proceedings with little or no opportunity to fight his case if he has been previously convicted of an “aggravated felony.” Having a conviction for an “aggravated felony” on one’s record renders one ineligible for nearly every form of “relief” or defense to removal. Pre-IIRIRA, the term “aggravated felony” was defined by an enumerated list of types of crimes—including violent crimes and theft crimes—for which the sentenced term of imprisonment was five-years or more. Under IIRIRA, the categories of crimes was increased to include now 50 different types, and the term of imprisonment for theft and violent crimes was lowered to just one-year or more. The term “conviction” was defined to include essentially any criminal disposition that results in (a) a finding or admission of guilt or responsibility for the criminal act, and (b) any penalty, including probation, fine, or incarceration. Additionally, the term “sentence” was redefined to include any sentence to incarceration regardless of whether the term is actually imposed or activated. This means that almost any conviction—including commonly used alternative dispositions such as nolo contendere, withheld adjudication, deferred dismissal, prayer for judgment continued, and so forth—for which the sentence is one year or more, even if that sentence is fully suspended for a term of probation, can subject a foreign national to expedited deportation without an opportunity to apply for relief. The redefined terms “conviction” and “sentence” have broad applicability in many other aspects of immigration law. In short, IIRIRA creates severe immigration penalties for many relatively minor criminal offenses.

Additionally, IIRIRA made fighting one’s deportation extremely more difficult. Before IIRIRA, a foreign national, whether he be undocumented or a lawful permanent resident, who found himself in deportation proceedings could apply for “suspension of deportation” and ask the Immigration Judge to allow him to stay in the U.S. as long as he met certain eligibility requirements: (1) continuous physical presence in the U.S. for at least seven years, (2) good moral character (i.e., absence of certain criminal convictions or documented instances of fraud) during those seven years, and (3) showing his citizen or resident spouse, parent, or child would suffer “extreme” hardship if he were deported. IIRIRA eliminated “suspension of deportation” and replaced it with two dramatically different applications for legal residents and undocumented immigrants. Under “LPR Cancellation of Removal,” a lawful resident foreign national must demonstrate that he or she: (1) has been a lawful permanent resident for at least five years, (2) has resided in the U.S. for at least seven years after lawful admission, and (3) has not been convicted of an aggravated felony (see above). Under “Non-LPR Cancellation of Removal,” an undocumented immigration must show: (1) he or she has resided continuously for at least ten years, (2) he has been a person of good moral character during this time, (3) he is not subject to any grounds of criminal inadmissibility or deportability, and (4) that his U.S. citizen or resident spouse, parent, or child would suffer “exceptional and extremely unusual” hardship if removed. The term “exceptional and extremely unusual hardship” was a new legal standard created by IIRIRA, and the result is most undocumented immigrants are unable to fight their deportation without showing their U.S. family members face a severe chronic medical condition or other compelling circumstances.

With the immigration issue at the forefront of the current election season, it will be interesting to see how our new government will alter the immigration law after January 2017. Democratic frontrunner, Hilary Clinton for one has promised to repeal the 3 and 10 year bars signed into law by her husband, President Bill Clinton. On the flipside, the Republican nominee, Donald Trump, has pledged to restrict the immigration laws even further.

After America’s 20 year experiment with tight immigration restrictions and exceedingly harsh immigration penalties, it’s time for the U.S. to reform the immigration system to honor our national identity as a nation of immigrants. We at Charlotte Immigration Law Firm strongly encourage our lawmakers to pass legislation to end the experiment and enact policies that coherently operate alongside our criminal justice system and respect immigrants’ rights to due process.

This post originally appeared on Charlotte Immigration Law Firm. Reprinted with permission.

About The Author

Benjamin A. Snyder is an associate immigration attorney at Charlotte Immigration Law Firm. Originally from Manassas, Virginia, Mr. Snyder moved to North Carolina in 2003. Mr. Snyder earned his Bachelor of Arts from Guilford College and his Juris Doctor from Elon University School of Law, both in Greensboro, North Carolina. While at Elon, Ben worked in the Humanitarian Immigration Law Clinic, where he received the annual Commitment to Humanitarian Immigration Law Clinic Award in recognition of his exceptional service to clients. At Elon Law, Mr. Snyder also served as President of the Elon Law ACLU, as Co-Director of the Pro Bono Board, and as a Case Manager for the Innocence Project. As a member of the Moot Court Board, Mr. Snyder competed in the American College of Trial Lawyers National Moot Court Competition and wrote the problem and bench brief for the Elon Law 2012 Billings Exum & Frye National Moot Court Competition. In recognition of his student leadership and community service, Mr. Snyder was awarded the 2012 David Gergen Award for Leadership and Professionalism, Elon Law’s highest honor for a graduating student. Prior to joining Charlotte Immigration Law Firm, Mr. Snyder worked at law firms in Greensboro and Charlotte focusing on immigration law. Mr. Snyder’s practice is 100% devoted to immigration law. Mr. Snyder represents clients in all manner of immigration matters, including employment and family based immigration petitions, nonimmigrant visa applications, consular processing, and immigration removal defense. Mr. Snyder is admitted to the North Carolina Bar, the U.S. District Court for the Middle District of North Carolina, and the Fourth Circuit Court of Appeals. He is a member of the North Carolina Bar Association and the American Immigration Lawyers Association.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.