The scenes at the southern border — of terrified families and isolated children huddled in dreary makeshift jails — suggest that the federal immigration regime is reaching an unprecedented level of cruelty under Trump. But the border crackdown that is being continued by the Trump administration in the present moment actually began long ago on Capitol Hill in 1996, with the passage of sweeping laws that swelled federal powers to incarcerate and deport migrants through the criminal courts.
The legal gauntlet was crafted under the Clinton administration in the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). But a generation later, these 1996 immigration laws are being challenged by activists fighting to dismantle the policies that Trump has ruthlessly exploited to brutalize immigrant communities.
The Trump administration’s anti-immigrant dragnet, driven by intensifying border enforcement and a rise in arrests nationwide by Immigration and Customs Enforcement (ICE), aims to criminalize the mere act of setting foot in the U.S. without papers. Yet the escalation in criminal prosecutions — often for nonviolent, pedestrian criminal offenses, like fraud or drug possession — has highlighted an often-overlooked intersection of the criminal and immigration legal regimes: Many laws allow for the expulsion of those deemed “undesirable” immigrants who have been convicted of crimes, even if they are legal residents. But today, the collateral consequences of mass criminalization are traumatizing immigrant communities across the country.
“Now, more than ever, the criminal legal system is just a pipeline to deportation, and the ‘96 laws are really the main apparatus that set the stage for that to happen,” said Sameera Hafiz, a policy director at the Immigrant Legal Resource Center, which is campaigning alongside hundreds of other organizations for a repeal of the 1996 laws. Under Trump, she added, “There’s a lot of emboldening of racism and racists,” but at the same time, his aggressive anti-immigrant policies provide “a real opportunity to shed light on how the system actually works.” While the administration “works to target and scapegoat immigrants with convictions,” ostensibly siphoning out so-called “bad” immigrants, the damage radiates through households and neighborhoods, and “fear and insecurity spreads widely among communities of color.”
The 1996 laws ensnared Donald Anthonyson in 2004, when he arrived in Puerto Rico after visiting Antigua, his home country, and was apprehended by immigration agents. He was locked up in a detention facility far from his home in New York, even though he was a green card holder at the time. What made him “deportable,” he discovered, was a conviction from 18 years earlier for a class A misdemeanor. He ultimately avoided deportation, but his life was ruptured by the long, tumultuous legal ordeal. He says he eventually lost his screen-printing business and never recovered from the financial setback — all for an offense that had only cost him $200 back in 1986. Anthonyson, now an activist with the group that helped him fight his deportation, Families for Freedom, says one of the most damaging aspects of the 1996 laws is that they are retroactive. So even the misdemeanor he incurred before the law was passed nearly triggered his banishment 18 years later.
“All I did was pay a goddamn fine,” he says of his past conviction, “and [get] told to go about my goddamn business…. And you’re telling me 18 years after, ‘You had a conviction, so you don’t belong in the country’ — that it matters so much, 18 years after, that you’re going to … mess up the rest of my future by exiling me? It’s obscene, and it’s vindictive.”
A Generation of Criminalization
The Antiterrorism and Effective Death Penalty Act and Illegal Immigration Reform and Immigrant Responsibility Act were pushed through Congress by a Republican majority amid a wave of anti-crime legislation under the Clinton administration, reflecting a bipartisan focus in Washington to “get tough on crime.” In the subsequent years, its harshest strictures drastically changed the legal landscape for non-citizens. First, the laws expanded the types of crimes that qualify as “deportable offenses” to a wide range of state-level crimes. The laws also imposed strict rules for mandatory detention and deportation, which automatically limited one’s access to court review for a deportation — a measure that paralleled the Clinton-era mandatory-minimum sentencing rules that helped fuel mass incarceration. Even if not deported, green-card holders and undocumented immigrants with criminal records could still be barred from adjusting their status to legal residence or citizenship in the future.
The legal fulcrum of the 1996 laws revolves around so-called “aggravated felonies” — an expansive category that includes many nonviolent offenses such as theft and tax fraud. As a result, for over two decades, immigrants with extremely minor convictions — for example, those who were nabbed as teens for carrying a small amount of marijuana — could face deportation in their 40s. When an immigrant survivor of domestic violence is inadvertently arrested along with her abuser after an assault, she could get swept from a local jail cell into ICE detention.
Aside from aggravated felonies, both undocumented immigrants and legal permanent residents are subject to deportation on other criminal grounds, such as so-called “crimes involving moral turpitude,” a category that could include lower-level violations that carry a maximum state sentence of a year or more, like some forms of welfare fraud. As Human Rights Watch reported, a legal resident and father of three from El Salvador got deported due to a combination of two misdemeanors. (The two convictions — for breaking into a car and shoplifting eye drops — had resulted in a fine and two months’ imprisonment under state law, yet in combination, added up to a deportable offense.)
The laws cast long shadows across generations of broken families. A study by the Urban Institute on six sites of ICE worksite raids in Arkansas, California, Florida, Iowa, Massachusetts and Nebraska found that household income declined on average by some 70 percent in the first six months after a migrant householder’s arrest. On top of the economic losses, the stress of losing a parent has led to psychological trauma for children, family instability, and potentially even homelessness or placement in foster care.
Not all ICE apprehensions under Trump have targeted people with convictions. Arrests of undocumented immigrants without criminal records has actually risen steadily under Trump to about 37 percent of arrests (double the rate under Obama). But Trump has boasted of cracking down on “bad hombres” through expanded ICE raids and border apprehensions, in addition to arresting more Central American asylum-seekers for the “crime” of illegal entry, including parents with children.
For immigrants ensnared in the “aggravated felony” dragnet, the 1996 laws tighten the deportation sieve by sharply restricting judges’ power to grant waivers that could shield an individual from deportation based on a criminal conviction. Originally, green-card holders who had at least seven years of residence could thwart a deportation order by presenting extenuating factors, such as ties to their family and community in the U.S., or conversely, negative consequences that would result from deportation, such as the removal of a family’s sole breadwinner.
The Obama administration made ample use of the post-1996 deportation regime, carrying out some 3 million deportations and locking up tens of thousands in prison-like detention centers. The Trump administration has further capitalized on the 1996 laws by foreclosing other avenues for reprieve, expanding family detention and, through a recent court decision, extending ICE’s power to apprehend immigrants held in local jails.
The consequences of the 1996 laws are deepened by the legal opacity of criminal proceedings. Often, immigrants are pressured to plead guilty to lessen their penalty, but advocates warn that defense attorneys might fail to properly inform clients of the immigration consequences, so they might not realize the true cost of their guilty plea until they are released from prison and immediately routed into ICE custody.
Some live in a legal limbo with a lapsed deportation order that could be revived at any point — perhaps just because ICE wants to get rid of them. Ravi Ragbir, a New York City-based activist who leads the New Sanctuary Coalition, was detained last year following a routine check-in with ICE authorities, based on a longstanding deportation order linked to a fraud conviction in 2000. His sudden placement in removal proceedings in early 2018 has since turned into a high-profile free speech case. Ragbir’s supporters note that the Trump administration has detained a number of prominent immigrant activists and accuse Homeland Security of seeking to deport them by dredging up past criminal convictions.
In a video posted last March, Ragbir explained, ICE had targeted him because of “the fact that I speak out in protest, the fact that I share my thoughts about the agency and the way they treat me … they don’t like that I’m speaking out about them.” Nonetheless, he vowed, “it’s not going to stop me from speaking up. In fact, we have to speak out more.”
The Border and the Color Line
Advocates see a feedback loop between the criminal and immigration enforcement infrastructures. Many Southeast Asian, Latinx and Black migrants have been disproportionately impacted by deportation on criminal grounds, in part due to direct cooperation between local police and ICE. Some provisions of the Illegal Immigration Reform and Immigrant Responsibility Act, like the 287(g) program, directly promote collaboration between federal and local authorities for immigration enforcement operations.
According to Southeast Asia Resource Action Center, about 13,000 members of the U.S.’s Southeast Asian refugee community have been given final deportation orders due to criminal convictions from many years ago. Many of them have been in the country since early childhood and have no cultural or family connections to the homelands that their parents fled amid conflict and persecution. Similarly, Black immigrants are especially vulnerable to the 1996 laws; they make up just one-tenth of all immigrants, but roughly a fifth of those targeted for deportation based on criminal convictions.
The growing backlash against the 1996 laws parallels a shift in the political discourse on “zero tolerance” criminal policies that fueled mass incarceration and the war on drugs in the 1990s. Noting that both deportation and imprisonment threaten communities of color, Benita Jain, supervising attorney of the Immigrant Defense Project, says, “if we’re going to push back against mass incarceration, we need to push back against mass deportation, because these systems are so integrally related to each other.”
Although dismantling the 1996 laws would not end all deportations, immigrant rights groups see the repeal of the 1996 laws as a step toward overhauling a dysfunctional immigration regime. They seek an end to mandatory detention for immigrants with criminal records, and repealing provisions of the bill that have facilitated racial profiling, such as the 287(g) program.
Some states have also begun amending their criminal statutes and using pardons granted by governors to shield people with past involvement in the criminal legal system from deportation. For example, last winter, Governor Brown pardoned dozens of Southeast Asian refugees facing deportation. A coalition of New York legal advocates and community groups recently launched Pardon: the Immigrant Clemency Project, to pressure Gov. Andrew Cuomo and other governors to expand the pardon as a counterweight to Trump’s deportation campaign.
“A vision that we want to work toward is … complete disentanglement of the criminal legal system and the immigration system,” Hafiz said.
But the main challenge now might just be raising public consciousness of how the 1996 laws affect the wider public. In contrast to more media-genic images of undocumented immigrants, such as those of aspiring “Dreamer” youth who received reprieves through Obama’s Deferred Action for Childhood Arrivals program, those with criminal convictions are often less sympathetic in the public’s eye. Though many might see the injustice of refugees and students being rounded up by ICE, Jain said, “they’re not necessarily hearing about the entire [system] and how these things fit together.”
The campaign against the 1996 laws seeks to highlight the often-hidden impact of criminal policy, which “isn’t always discussed as fully and as clearly and as honestly.” In the “black-and-white” conversation on immigration reform, she said, “You’ve got the administration saying immigrants are bad. And you’ve got other folks saying, well, people are just here to get a better life.” But the reality is more complex: “People make mistakes. People have whole lives. People are not the sum of their convictions. And that’s one key thing that both the criminal legal system and the deportation system have to think about.”
Anthonyson reflects on his nightmare in the deportation system as a portent of the chaos now unfolding under Trump. When people can be prosecuted simply for daring to cross the border, he said, “before you even get a chance to defend yourself in an immigration court, you have to defend yourself in a criminal court.” Under the guise of punishing crime, the government had “removed a whole class of people who are already embedded into this country, and just exiled them. Poof! Like that.”