The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was enacted on September 30, 1996 in order to aid the government in keeping track of who is present in the United States. Four particular provisions of IIRIRA are discussed herein: (1) mandatory detention; (2) indefinite detention; (3) aggravated felonies; and (4) expedited removal.
First, IIRIRA mandates the detention of two principal classes of immigrants: (1) undocumented non-citizens; and (2) non-citizens convicted of committing specified crimes. Prior to this policy, immigration judges could temporarily release an immigrant pending resolution of his/her case if, in the judge’s discretion, the immigrant merited release. Judges could consider such factors as the length of time the immigrant had lived in the United States, evidence of the immigrant’s rehabilitation, and the potential danger the immigrant posed to the community. Under IIRIRA, judges no longer make temporary release determinations; rather, IIRIRA makes detention mandatory for all undocumented aliens until they are either released or face removal proceedings.
Second, IIRIRA’s mandatory detention has resulted in the long-term and even indefinite detention of a number of non-citizens who cannot be removed because, for example, their home country will not accept them. In 2005, the Supreme Court took up the issue in Clark v. Martinez, holding that inadmissible aliens may be constitutionally detained beyond the ninety-day removal period but only for a reasonable time thereafter to effectuate removal. Thus, the Court ruled that indefinite detention ran afoul of the Constitution and needed to be remedied.
Third, IIRIRA increased the number of “aggravated felonies” for which non-citizens could be detained and deported. Prior to IIRIRA, the definition of “aggravated felony” only encompassed murder and trafficking in drugs or firearms. IIRIRA expanded this definition to include many other violent and drug-related crimes such as the rape or sexual abuse of a minor, crimes of dishonesty such as fraud and forgery, and obstruction of justice crimes such as perjury or witness tampering.1
The expanded definition of aggravated felonies also made certain lesser offenders eligible for removal. Prior to IIRIRA, an immigrant who was sentenced to more than one year of incarceration was considered deportable. IIRIRA changed the standard to allow for the deportation of those who were facing less than one year of jail time, in some cases. A portion of these offenses were non-violent misdemeanors for which the offender received suspended jail time. 2
Fourth, IIRIRA also established a process known as “expedited removal” under which an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts may be removed from the United States without any further hearing or review unless the alien indicates a fear of persecution. The purpose of expedited removal is to reduce the substantial backlog of immigration cases by denying lengthy administrative and judicial review processes to immigrants who do not have a legal basis to remain in the United States.
Caution must be taken, however, to ensure that expedited removal does not lead to the deportation of immigrants with valid asylum claims. Under IIRIRA’s expedited removal, immigration officers and inspectors must make fairly rapid “credible fear” determinations—decisions of whether an alien’s fear of return to his/her home country is believable and supported by evidence. While aliens who pass the initial “credible fear” determination then have their asylum claims decided by an immigration judge, those who do not pass this test have a very short time to provide additional evidence of their claim. Specifically, they can request that a judge review the asylum officer’s determination, but this review must occur within 24 hours if possible or within seven days in any case.
Thus, while this asylum process assuredly screens out a percentage of cases lacking validity, it may also improperly restrict asylum seekers who have valid asylum claims but cannot prove them within the legal time constraints.
Beyond IIRIRA, a more general concern raised by U.S. immigration law standards is the detention of non-citizen families. Often families are split up within the detention system, causing these families considerable hardship and uncertainty.
Catholic Social Teaching
The Church recognizes the right and duty of the government to provide for the public safety and welfare of its citizens. This duty requires that certain dangerous individuals in removal proceedings be held in detention pending a resolution of their cases. But along with this duty comes an obligation to assess whether each individual in detention is actually a threat to public safety. Human rights considerations, respect for basic dignity, and the practicalities of cost and efficiency mandate that individuals in proceedings who are not threats to public safety should not be detained.
In their statement, One Family Under God, the U.S. Bishops concluded that:
"[d]etention has become a poor substitute for a policy of effective removal. Alternatives to detention should be explored where possible. Long term detention of unaccompanied minors should be avoided. Individuals who are not criminals and who are unlikely to abscond should also have other options. In instances in which aliens are detained, the conditions of confinement should be humane. Non-criminal aliens should be protected from criminal inmates and should have access to medical care and legal representation." 3USCCB Position
The U.S. Catholic Bishops understand the need for detention of certain criminals and certain non-citizens pending removal. However, the Bishops believe that certain due process concerns must be addressed. First, the Bishops oppose mandatory detention and call for re-installing a case-by-case approach to regarding release from detention. Many immigrants are no longer able to present their case to a judge, even if they do not have a criminal record, do not pose a danger to the community, and do not pose a flight risk. Second, the Bishops support amending the list of aggravated felonies to exclude certain non-violent misdemeanors that do not involve moral turpitude for which the offender received little or no jail time. Third, the Bishops oppose indefinite detention as a violation of human liberty and dignity. Government must move with all deliberate haste to resolve the cases of detained immigrants, especially those who have spent unduly long periods in custody. Fourth, the Bishops support revision of the expedited removal process to ensure that valid asylum claims can be properly asserted.
Furthermore, the U.S. Catholic Bishops urge lawmakers to prioritize the protection and unification of families affected by the detention process. In Congressional testimony, Bishop Thomas Wenski stated: “Efforts should be made to keep families together through release or alternatives to detention, wherever possible. If detention is necessary, a family should be held in a non-penal setting. Children should be protected from dangerous conditions and, if unaccompanied by a parent or guardian, have access to counsel and be placed in the least restrictive setting.”
1 Two recent legal challenges to the definition of aggravated felony have met with varying success in the U.S. Supreme Court. First, the Court held in the 2007 case of Gonzales v. Duenas that theft offenses, including aiding and abetting a theft, were intended to be aggravated felonies under IIRIRA and thus are deportable offenses. Second, the Court ruled in the 2006 case of Lopez v. Gonzales that certain drug possession offenses considered to be federal misdemeanors do not fall within the definition of aggravated felonies, even if they are classified as felonies at the state level.
2 It should also be noted that under IIRIRA, legal permanent residents are also subject to detention and removal if they have been convicted of an aggravated felony.
3 United States Conference of Catholic Bishops, “One Family Under God,” Committee on Migration Statement, March 25, 1998.