Fix 96

The time has come to fix immigration law.


By Mark Dow

The immigration debate is about two things:how to stop the illegals trying to get in and what to do about the illegals already here — or, as they say inside the beltway, enforcement and legalization.

But the focus on illegals on both sides of the border has obscured something more urgent:harm being done by immigration laws already on the books to legal immigrants who are already here.

Since 1996, we have been deporting lawful permanent residents (despite the label) by the hundreds of thousands. Rhetoric from the Bush administration and its kinder, gentler successor has helped convince the public that when someone with a green card is deported, it’s because he is a dangerous “criminal alien.”

But that’s usually not the case. Between 1997 and 2007, “[a]mong legal immigrants who were deported, 77 percent had been convicted for such nonviolent crimes” as drug possession and traffic offenses, according to Human Rights Watch (April 2009).

Using Immigration and Customs Enforcement (ICE) statistics, Human Rights Watch has estimated that in those ten years, there were 434,495 people deported as a consequence of non-violent criminal offenses, compared to 140,572 for violent offenses.

So how did this happen?

Fourteen years ago, to commemorate the one-year anniversary of the bombing of the Murrah Federal Building by an American citizen, Congress hurriedly passed — and President Bill Clinton signed into law — the Antiterrorism and Effective Death Penalty Act (AEDPA), and shortly thereafter the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Together these led to an unprecedented increase in the number of people detained by ICE:  from 1994 to 1998, the average daily number of persons in immigration detention rose from 6,785 to 15,447.  Legal immigrants have accounted for the most significant increase in these numbers since the numbers have been kept.

In his recent reflections on the legacy of the Oklahoma City bombing, former President Clinton singled out the new Arizona law.  He was too modest to mention his own role in tearing families apart and costing the United States billions of dollars in unnecessary enforcement spending and lost tax revenue with the most anti-immigrant federal laws passed in generations.

Here’s what the 1996 laws did.  First, they drastically expanded the range of crimes for which lawful residents are subject to mandatory detention and deportation or “removal.”  Then they stripped these immigrants of the right even to apply for a so-called waiver of deportation from an immigration judge.

A typical case stemming from the 1996 laws might involve a legal resident who has served in the military, runs a business, and has paid taxes for decades.  His wife and children may be U.S. citizens, and he might not even speak the language of the country in which he was born.  And now he is detained and removed as a consequence of a decades-old misdemeanor for which not even a short prison sentence was imposed.

While these 1996 detentions-and-deportations are handled by immigration authorities and governed by “immigration law,” the cases are not really about immigration at all.  They are more accurately viewed as part of a two-tiered criminal justice system for non-citizens.  As Arizona troopers begin checking the status of brown-skinned people they “lawfully”  encounter, let’s remember that the definition of “U.S. citizen” has changed over time.  People of African descent used to be ineligible to become U.S. citizens; do we need any other reminder that such change is progress?

Already in the late 1990’s, once the hysteria had settled — and before it was revived — Republican and Democratic members of Congress came to understand the devastating and unjust effects of the laws they had passed.  They began to see that citizen and non-citizen are already much more interconnected than the laws, much less the rhetoric, acknowledge.

The legislative reform movement known as “Fix 96” began in a household in Mesquite, just outside Dallas.  It reached far into the nation’s capitol, and all over the U.S.

Congresspeople on both sides of the aisle introduced private bills to exempt lawful, taxpaying, upstanding citizens — sorry, immigrants — from the new dragnet.  Pressure from groups of (actual) citizens and non-citizens made bipartisan reforms appear likely.  But the plans for reform came to an abrupt end with the attacks of September 11, 2001.

It’s time to revive Fix 96.  This time around, those involved in the debate on “comprehensive immigration reform” — whether governors, legislators, presidents, or ex-presidents — should take a closer look at what our laws are already doing, and to whom.

–Mark Dow is the author of American Gulag: Inside U.S. Immigration Prisons (California 2004).  He teaches English at Hunter College in New York.