Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)

Prior to 1996, legal immigrants who broke the law could go to immigration court and ask that deportation be waived. About half were allowed to stay in the country after convincing the Immigration and Naturalization Service that were rehabilitated and had roots in the community. Those legal immigrants were permitted to go before an immigration judge, who could exercise their discretion to prevent deportation or to allow it to proceed forward. Before 1996, the law allowed an immigration judge to consider the immigrant’s family, children, community ties, U.S. military service, or the possibility of being persecution once they are sent back to their home countries. Ultimately, before 1996, an immigration judge would have been able to determine whether deportation was an excessively harsh punishment given the unusual case-by-case circumstances surrounding the immigrant. Before 1996, about 5,000 immigrants around the US, all with criminal records, went before immigration courts each year asking that deportation be waived.

However, the 1996 law entitled the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), changed all that by requiring automatic deportation of non-citizens who have committed a wide variety of crimes, even after they have served their time. Today there is little if no recourse for criminal aliens in the process of being deported. The IIRIRA made 3 radical changes to the law: One, they expanded the definition of deportable crimes; two, they were applied retroactively; and three, they removed the right to seek an appeal in front of an immigration appellate judge.

Because the 1996 law is applied retroactively, convictions for certain crimes before 1996 were also subject to deportation before the passage of the IIRIRA. The 1996 laws expanded deportable crimes to include offenses such as domestic violence, drunken driving and shoplifting. Congress passed this law out of frustration because some lawmakers felt that Immigration and Naturalization Services (INS) weren’t being tough enough on convicted felons. However, even Senator Spencer Abraham, a Michigan Republican who drafted many of the bill’s provisions, said in Senate speech that INS officials were going overboard. They “seem to be pursuing some admittedly minor cases aggressively,” he said. Thus, someone who had already served their time for offenses committed before the law passed can now face deportation.

Judges dealing with criminal deportations say they have no choice but to honor the letter of the law. They would like discretion in deciding who goes and who stays but cannot overturn a deportation order once it is issued. Even INS officials have criticized the 1996 laws “as a law that went too far and eliminated discretion in cases where it is indisputably warranted and resulted in the deportation of longtime permanent residents that has a devastating effect on families.”
Until and unless the 1996 laws are changed, legal immigrants in deportation proceedings must look elsewhere for help. Relief from deportation is very rare, and one such form of relief specifically provided within the law itself is the explicit power granted to a state Governor to prevent the deportation by granting the alien a full and unconditional pardon.
By obtaining a gubernatorial pardon, an effected individual will be able to remove from their criminal history the basis utilized by Immigration and Citizenship Services (ICS) for the deportation in the first place. This is a measure of redemption is granted to only a few people each year.

According to the Federal Immigration and Nationality Act, only four grounds for deportation can be cured by a gubernatorial pardon: crimes of moral turpitude, aggravated felonies, multiple criminal conviction and high speed flight. Domestic violence crimes are not covered by any of the categories.