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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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