In an effort to discourage illegal immigration and expedite the deportation of immigrants who had committed crimes, Congress in 1996 fired a shot that was more like a blast from a howitzer–more threatening to fundamental American traditions of due process and fair play than to illegal or undesirable aliens.
President Bill Clinton or Congress should have taken a calmer look at the implications of these laws. But after the anti-immigrant hysteria of the mid-1990s–and on the eve of a presidential election–no one wanted to seem soft on illegal immigrants, much less criminals.
Nearly five years later, it’s clear that portions of the Illegal Immigration Reform and Immigrant Responsibility and the Anti-Terrorism and Effective Death Penalty acts ought to be amended, or rewritten altogether.
Some in Congress who voted in favor of them today express second thoughts, and courts–most recently the U.S. Supreme Court–have overturned portions of the 1996 laws as unfair, unconstitutional, or both.
The case of Mary Anne Gehris, who was born in Germany in 1965 and was adopted by a Georgia couple when she was 18 months old, illustrates some of the bizarre outcomes to which the 1996 law can lead. In 1988, Gehris got into a hair-pulling fight over a boyfriend with another woman, and was arrested. She pleaded guilty to a misdemeanor and got a one-year suspended sentence.
About 10 years later, she applied for citizenship and instead was ordered immediately deported. It turns out that the 1996 legislation’s definition of “aggravated felony”–prompting immediate deportation–included any crime of violence, or against property, for which the sentence is a year or more, even if it was suspended. According to this standard, shoplifting and other minor offenses that carry one-year suspended sentences can become reason for deportation.
Because its provisions are retroactive, and short-circuit appeals, the 1996 immigration reform can turn a childhood prank or a minor, long-ago indiscretion into an adult nightmare. In Gehris’ case she faced deportation and the challenge of raising a child with cerebral palsy.
In March of 2000 the Georgia Board of Pardons and Paroles unanimously granted her a full pardon for her 1988 misdemeanor, which lifted the grounds for her deportation. That year the board granted 93 other pardons to immigrants facing deportation over minor criminal offenses
It seems the Georgia board had a far keener sense of fairness toward immigrants–and fundamental compassion–than either Congress or the White House.
Any revision of the two laws must begin with a new definition of “aggravated felony.” Serious criminals ought to be deported, but the current definition is so indiscriminate and ill-worded it has snared thousands of immigrants guilty of relatively minor offenses.
The laws’ retroactive provisions–and their attempt to pre-empt appeals to the federal judiciary–are also a gross assault on Americans’ sense of fairness. A penalty as serious as deportation, which can ruin not only the individual’s life but that of his family, ought to be reviewable by immigration judges and the federal courts.
In June, the U.S. Supreme Court ruled that a Haitian immigrant could not be deported without a hearing for a drug violation that occurred before the 1996 law was passed. The decision is a step in the right direction; Congress should amend other retroactive provisions and rethink its attempt to make scores of immigration decisions unappealable.
For instance, the “expedited removal” provisions of the 1996 law now allow low-level immigration officers at the border to turn away or “remove” anyone–including asylum seekers or immigrants returning from a visit home–at their own discretion. By sharply limiting the right to a hearing or an appeal by an immigration judge, the 1996 law in effect transformed immigration officers into law enforcers, judges and juries.
One cause for expedited removal is the use of false documents, which in effect could exclude many asylum seekers. Think about it: If you’re fleeing persecution in Albania you’re not likely to have a visa to any place or announce your plans to defect at Tirana International so that you can get the proper paperwork. Instead you do what you need to do to get out of Albania.
People with fraudulent documents ought to be questioned, detained and in many cases deported–but not before they have a right to explain themselves or a chance to appeal a fateful deportation decision. It is still possible to obtain asylum to the U.S. but the 1996 legislation sharply narrowed the circumstances under which it may be granted and the chances of getting a hearing. In a number of cases since the 1996 laws went into effect, legitimate asylum claimants have been summarily denied entry by immigration officers and put on the next plane back home.
The law also dictates that anyone found to have been in this country illegally for more than three months, but less than a year, is barred from re-entering for three years. Those here illegally for more than a year are barred for 10 years.
Exceptions? An immigrant who has lived here for more than 10 years could ask for a suspension of deportation on grounds of hardship–except that the 1996 laws set a standard so high that it’s almost impossible to meet.
Like “zero tolerance” laws for drugs or weapons possession, these automatic-sanction provisions echo legislative and popular frustration with criminals or the often slow pace of the criminal justice system. They also resonate well on the campaign trail. But just as often their inflexibility means that extenuating circumstances are ignored, and special cases can’t be pleaded.
The 1996 laws went as far as to create a new court for hearing deportation cases based on secret or classified information. The notion that people can be deported without knowing–much less being able to refute–evidence against them is better suited for a totalitarian regime like Iraq than for the U.S. A federal judge dealing with one of these cases recently commented: “One would be hard-pressed to design a procedure more likely to result in erroneous deprivations. Secrecy is not congenial to truth-seeking.”
In many respects, the 1996 laws tried to set off immigrants as a second class of people, beyond the reach of America’s traditions of equal justice and individual rights.
The courts–and America’s innate sense of fair play–strongly argue otherwise.
