Appendix A

Immigration Policy Timeline

This appendix lists the key legislative, administrative, and judicial actions from 1980 through the time this report was completed, in late 2011.

1980

•   The Refugee Act established a new statutory scheme for processing and admitting refugees from overseas as well as asylum seekers physically at U.S. borders or in the country.

1986

•   The Immigration Marriage Fraud Amendments sought to prevent aliens from using sham marriages to gain admission to the United States by barring immigration based on marriages taking place while deportation proceedings were pending. [The resulting unintended consequences led to changes in 1990 (as part of the Immigration Act of 1990) requiring individualized consideration of the genuineness of the marriages in question.] The amendments also increased administrative demands on the Immigration and Naturalization Service (INS) by creating a new category of “conditional” permanent residents, with the condition removable only after 2 years in the United States, certain factual proofs, and hearings.



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Appendix A Immigration Policy Timeline T his appendix lists the key legislative, administrative, and judicial actions from 1980 through the time this report was completed, in late 2011. 1980 • The Refugee Act established a new statutory scheme for process- ing and admitting refugees from overseas as well as asylum seek- ers physically at U.S. borders or in the country. 1986 • The Immigration Marriage Fraud Amendments sought to prevent aliens from using sham marriages to gain admission to the United States by barring immigration based on marriages taking place while deportation proceedings were pending. [The resulting unintended consequences led to changes in 1990 (as part of the Immigration Act of 1990) requiring individualized consideration of the genuineness of the marriages in question.] The amend - ments also increased administrative demands on the Immigration and Naturalization Service (INS) by creating a new category of “conditional” permanent residents, with the condition removable only after 2 years in the United States, certain factual proofs, and hearings. 129

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130 BUDGETING FOR IMMIGRATION ENFORCEMENT • The Immigration Reform and Control Act (IRCA) imposed sanc- tions on employers who knowingly hired or recruited unauthor- ized aliens. The law also created two legalization programs. One allowed current unauthorized aliens who had lived in the United States since 1982 to regularize their status; the other permitted people who had worked for at least 90 days in certain agricultural jobs to apply for permanent resident status. Under these pro- grams, roughly 2.7 million people who were then illegally resid- ing in the United States eventually became lawful permanent residents. IRCA also set the stage for the Institutional Removal Program (IRP) and the Alien Criminal Apprehension Program (ACAP), established in 1988 (see below), and prohibited certain forms of employment discrimination on the basis of national ori - gin and citizenship status. 1988 • The Anti-Drug Abuse Act (ADAA) added “aggravated felony” as a new but limited ground for deportation. Initially, this cat- egory was limited to serious crimes (e.g., murder and drug and weapons trafficking), regardless of the sentence imposed and the longevity of the alien’s residence in the United States. In subse - quent years, Congress and new court decisions greatly expanded the aggravated felony category and the legal penalties of those so categorized. ADAA also cut back on the procedural protection and discretionary relief available to such aliens. • As a result of the IRCA (see above)—which required INS to initi- ate deportation proceedings for all criminal aliens at federal, state, and local prisons as expeditiously as possible after the date of conviction—INS established the Institutional Removal Program (IRP) and the Alien Criminal Apprehension Program (ACAP). IRP covered about 30 federal institutions and a limited number of state institutions. ACAP was responsible for the identification, processing, prosecution, and removal of all criminal aliens in institutions not participating in the IRP. [In 2007, IRP and ACAP were combined into the Criminal Alien Program (see below)]. 1990 • The Immigration Act raised legal admissions to 50 percent above the pre-IRCA level (mainly in the category of employment-based immigrants), eased controls on temporary workers, and limited the government’s power to deport immigrants for ideological rea-

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131 APPENDIX A sons. It also expanded the scope of aggravated felony to include nonpolitical crimes of violence for which a prison sentence of at least 5 years was imposed, while eliminating important discre- tionary relief for certain aggravated felons. The act also abolished judicial recommendations against deportation, thus terminating the discretion of sentencing judges to grant relief from deporta- tion for criminal offenders. 1994 • The Violent Crime Control and Law Enforcement Act (VCCLEA) gave the U.S. Attorney General the option to bypass deporta - tion proceedings for certain alien aggravated felons, enhanced penalties for alien smuggling and reentry after deportation, and increased appropriations for the Border Patrol. • Operation Gatekeeper was introduced in the San Ysidro sector (near San Diego, California) of the U.S.-Mexico border. Along with VCCLEA, it ushered in an era of sustained resource build- ups for border enforcement and detention that has won con- tinuing support from both Democratic and Republican admin- istrations and Congresses. It also introduced the IDENT system to capture the fingerprints of border crossers, along with other technologies intended to modernize border operations. • Proposition 187 passed in California, prohibiting the use by unau- thorized immigrants of all public services, including education, not mandated by the U.S. Supreme Court’s Plyler v. Doe (1982) decision. Although court decisions enjoined its implementation, the politics surrounding Proposition 187 contributed to growing public antipathy toward such immigration and helped lead to the 1996 laws (see below). • The INS overhauled the asylum process and system. Most impor- tantly, it created a new, independent corps of asylum adjudica- tors within INS. The new regulations created a cadre of asylum officers and required that unsuccessful applicants be referred to immigration judges for removal hearings. The regulations also deferred claimants’ eligibility for employment authorization for 6 months. • Detention capacity began a steady expansion that has contin- ued to the present day, with greater emphasis on removal and deportation, especially of criminals. Many of these policies were embedded in appropriations increases and mandates spelled out in the congressional committees’ accompanying reports. These changes were reinforced and accelerated in 1996 (see below).

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132 BUDGETING FOR IMMIGRATION ENFORCEMENT 1996 • The Antiterrorism and Effective Death Penalty Act (AEDPA) added new crimes to the definition of aggravated felony. AEDPA also established the “expedited removal” procedure for arriv- ing noncitizens whom border officials suspect of lacking proper entry documents or being engaged in fraud; the procedure was amended later that year by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (see below). • IIRIRA added new grounds of inadmissibility and deportability, expanded the list of crimes constituting an aggravated felony, created expedited removal procedures, and reduced the scope of judicial review of immigration decisions. The act expanded the mandatory detention of immigrants in standard removal proceedings if they have previously been convicted of certain criminal offenses. It also increased the number of Border Patrol agents, introduced new border control measures, reduced gov- ernment benefits available to immigrants (as did the welfare reform measures enacted the same year), increased penalties for illegal immigrants, toughened procedural requirements for asy- lum seekers and other immigrants, mandated a system to monitor both arrivals and departures of immigrants (now US-VISIT), and established a pilot program in which employers and social service agencies could check by telephone or electronically to verify the eligibility of immigrants. IIRIRA established a statutory frame- work for subsequent actions by states and localities, known as 287(g) programs (see below), to take on immigration law enforce- ment roles that had traditionally been exercised solely by federal immigration enforcement agencies. 1997 • The Basic Pilot Program was a test program for what subsequently became the E-Verify system. Today, E-Verify permits employers to electronically check the work eligibility of new hires by verifying the immigration status information they provide against Social Security Administration, U.S. Citizenship and Immigration Ser- vice (USCIS), and other federal databases. 1999 • INS adopted regulations for processing individual claims under the Convention Against Torture. These regulations expanded the remedies available in asylum-related cases.

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133 APPENDIX A 2000 • The INS commissioner issued a memorandum describing the principles through which INS could exercise prosecutorial dis- cretion under the changes brought about by the 1996 laws and processes for making and monitoring discretionary decisions. 2001 • The USA Patriot Act broadened the terrorism grounds for exclud- ing aliens from entering the United States and increased monitor- ing of foreign students. • The Department of Justice (DOJ) mandated closing removal hear- ings to the public in certain cases for reasons of national security. • In Zadvydas v. Davis (2001), the U.S. Supreme Court imposed time limits on INS’s power to detain noncitizens pending execution of their removal orders. This decision, along with subsequent Supreme Court rulings, such as Demore v. Kim (2003) and Clark v. Martinez (2005), expanded the scope and duration of detentions permitted by law. 2002 • The Enhanced Border Control and Visa Reform Act required the development of an interoperable electronic data system to be used to share information relevant to alien admissibility and removability. It also required the implementation of an integrated entry-exit data system: the US-VISIT program (see above) was established to implement this system. • The Homeland Security Act created the Department of Homeland Security (DHS). In 2003, nearly all of the functions of INS—the DOJ agency responsible for immigration services, border enforce- ment, and border inspection—were transferred to DHS and restructured to become three new agencies: Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and USCIS. In addition, US-VISIT became a separate, new entity in DHS. CBP, US-VISIT, and, to a lesser extent, ICE have been the beneficiaries of significant resource increases as part of the after- math of 9/11 and of the growth in the size of the illegal immigrant population. The Executive Office of Immigration Review (EOIR) was left in DOJ. • The work of the Board of Immigration Appeals (BIA) was stream- lined to expand the category of cases eligible for affirmances

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134 BUDGETING FOR IMMIGRATION ENFORCEMENT without opinion and single-member review; eliminate BIA’s authority to conduct de novo fact finding; limit review of fact and credibility determinations to a “clearly erroneous” standard; and impose time limits for rendering decisions; and reduce the number of BIA members. • The U.S. Attorney General initiated the National Security Entry- Exit Registration System (NSEERS), requiring the registration of nationals of countries designated as harboring terrorists. 2003 • The SEVIS (Student and Exchange Visitor Information System) automated program for collecting information on foreign stu- dents—mandated by the 1996 IIRIRA—became fully operational. 2004 • The National Intelligence Reform Act expanded the grounds of inadmissibility and deportability, accelerated the deployment of the entry/exit system, and increased criminal penalties for alien smuggling. • The US-VISIT system required that all travelers to the United States, with the exception of most Mexicans and Canadian tem- porary visitors crossing the land borders, be fingerprinted and photographed on their arrival at ports of entry. 2005 • The REAL ID Act established statutory guidelines for removal cases, expanded the terrorism-related grounds for inadmissibil- ity and deportation, included measures to improve border infra- structure, and required states to verify an applicant’s legal status before issuing a driver’s license or personal identification card that may be accepted for any federal purpose. [States’ protests persuaded Congress to delay implementation of the drivers’ license provisions of the law.] It also barred the use of habeas corpus as a vehicle for challenging removal orders, thus virtually completing the concentration of judicial review in the courts of appeals. • The Secure Border Initiative was launched. It included SBInet, which was intended to create a “virtual border” by helping the Border Patrol target enforcement efforts through a network of

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135 APPENDIX A cameras and sensors to assist in identifying unauthorized border crossings. The initiative was abandoned in 2010 (see below). • Operation Streamline was launched in the Del Rio sector of the border in the Western District of Texas and later expanded to other areas. Its goal was a “zero tolerance” policy, with the gov - ernment attempting to file criminal charges (mostly for misde- meanors) against virtually all persons apprehended for entering the country without authorization. 2006 • The Senate failed to pass the immigration reform legislation that had passed the House in 2005; in its place Congress adopted the Secure Fence Act. The act called for more than 700 miles of double-reinforced fence to be built along the border with Mexico, through the U.S. states of California, Arizona, New Mexico, and Texas in areas that had experienced illegal drug trafficking and illegal immigration. It authorized more lighting, vehicle barriers, and border checkpoints and put in place more advanced equip- ment, such as sensors, cameras, satellites and unmanned aerial vehicles, in an attempt to increase control of illegal immigration into the United States. 2007 • The Institutional Removal Program (IRP) and the Alien Criminal Apprehension Program (ACAP) were combined into the Crimi- nal Alien Program (CAP). CAP screens inmates in all 114 federal prison facilities for aliens convicted of crimes. CAP set the stage for the creation of the Secure Communities Program in 2008 (see below). • Section 287(g) of the 1996 IIRIRA was implemented, providing for the federal government to enter into agreements with state and local law enforcement agencies; to train designated state and local officers to perform selected functions of immigration officers, including searching specific federal databases and conducting interviews to assist in the identification of those individuals in the country illegally; and to carry out these activities under the supervision of ICE officers. The first such agreement was signed in 2002; however, most of the state and local law enforcement agencies that decided to join the program did so after 2007.

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136 BUDGETING FOR IMMIGRATION ENFORCEMENT 2008 • Although ICE was screening 100 percent of federal and state pris- ons through CAP for aliens convicted of crimes (see above), it had full coverage of only about 10 percent of the approximately 3,100 local jails throughout the United States. Accordingly, ICE built on CAP by introducing the Secure Communities Program, which assists local communities in identifying and removing deportable aliens for removal by integrating federal databases on criminal and immigration statuses. • The U.S. Attorney General required immigration judges, under certain circumstances, to look beyond the record of conviction and review external evidence to determine whether a prior con- viction was of a crime involving “moral turpitude,” thereby mak- ing it easier for legal resident aliens to be potentially deportable. This altered the immigration consequences of criminal convic - tions and added to the workloads of immigration courts. 2009 • As part of an effort to move away from a convicted-criminal approach to detention, ICE created an Office of Detention Policy and Planning (ODPP) to design and plan a civil detention system, as well as an Office of Detention Oversight (ODO) to investigate detainees’ grievances in a neutral manner. • ICE issued new guidelines to field offices regarding workplace raids, instructing agents to pursue evidence against employers of illegal workers before pursuing actions against the workers. 2010 • DHS announced that the Secure Communities Program had been deployed to all 25 U.S. counties along the Southwest border; it planned to expand the program to every law enforcement juris- diction in the country by 2013. • Work ceased on the SBInet “virtual fence” (launched in 2005; see above) along the U.S.-Mexico border. • In Padilla v. Kentucky (2010), the U.S. Supreme Court allowed the lower courts to find that the failure of criminal defense lawyers to advise their immigrant clients of the possible deportation con- sequences of guilty pleas could constitute ineffective assistance of counsel. The decision affects not only future criminal proceed- ings, but also removal proceedings based on criminal convictions, and it is likely to encourage immigrants who are facing removal

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137 APPENDIX A to file motions to reopen their cases on this ground. Resolving such cases will entail additional delays, detention pending deci - sion on these claims, and other demands on the administrative and judicial resources of the immigration enforcement system. • In Kucana v. Holder (2010), the U.S. Supreme Court held that the denial of an alien’s motion to reopen an immigration proceeding was subject to judicial review. This decision overruled an amend- ment to the 1996 immigration laws that said that certain immigra- tion orders were not subject to judicial review. • ICE issued an administrative directive outlining its prosecutorial discretion goals for ICE field offices and emphasizing that priority attention for removal action should be directed at criminal aliens. 2011 • ICE provided additional guidance on deportation priorities, focusing on criminal aliens and responding to some criticisms of the Secure Communities Program for deporting low-level offenders and traffic violators. Secure Communities continued to expand to approximately 1,800 jurisdictions in 43 states and territories. • In Chamber of Commerce of U.S. v. Whiting (2011), the U.S. Supreme Court rejected a preemption challenge to Arizona’s statute pro- hibiting employment of undocumented aliens and requiring employers to use the federal E-Verify data system. • In Brown v. Plata (2011), the U.S. Supreme Court upheld a court order mandating a substantial reduction in prison overcrowding, which may increase the pressure on states to deport immigrant inmates before they have completed their sentences. • ICE issued additional prosecutorial discretion guidelines, provid- ing greater detail regarding circumstances (such as pursuing edu- cation) that should be taken into account in determining whether to defer action on removal. The guidelines also highlighted the role that ICE attorneys are authorized to play in determining when to bring and drop cases in process for immigration court consideration.

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