This past weekend, we remembered the thousands who perished in the attacks on September Eleventh twenty years ago as well as those who died in the toxic aftermath and in the wars in Iraq and Afghanistan. And, just about ten days ago, the last U.S. military flight left Kabul concluding a twenty-year war and the month-long frantic evacuation airlifting 112,000 people out of Afghanistan. The day September 11, 2001 may have been twenty years ago, but the shock, the pain, the anger, and the bewilderment feel as fresh as the moments when the four planes flew into the World Trade Center, the Pentagon and crashed in Shanksville, Pennsylvania.
Many have said that the day, September 11, 2001, had forever changed this country. Maybe it didn’t. Maybe it only provided the justification to re-shape the post-Cold-War world order according to an American image and gave those who wanted to rein in voting rights and civil rights a political cover to do so.
In the immigration world, the crack-down on immigrant rights started years before 9/11. It began with the War on Drugs in the late 1980s. The rhetoric and actions ratcheted up in 1995 following the Oklahoma City bombing that killed 168 people and wounded 680 others in addition to destroying hundreds of city blocks on April 19, 1995. Almost exactly on the one-year anniversary of the bombing, Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA) on April 24, 1996, punishing defendants in criminal matters and immigrants alike. AEDPA curtailed defendants’ ability to challenge their conviction and severely restricted people on death row from appealing their sentence or seeking judicial review, making it easier for the government to execute people. Although immigrants had nothing to do with the bombing, they were punished any way. AEDPA limited judicial review on agency discretionary decisions, it broadened the spectrum of deportable crimes, it expanded the scope of mandatory detention and it limited relief from removal. AEDPA was the first draft of the emerging immigration enforcement framework.
Six months after Congress passed AEDPA, it passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in September 1996 ushering in the enforcement-centric immigration scheme as we know it today. Among the harshest provisions of IIRIRA are the following:
- Curtailed judicial review in many agency actions, such as expedited removal discussed below.
- Expanded the scope of deportable crimes by enlarging the definition of “aggravated felony” to include many non-violent crimes with unlimited retroactive application, making many long-term residents deportable for crimes that weren’t aggravated felonies when they committed them decades ago. IIRIRA also made immigrants convicted of “aggravated felony” ineligible for discretionary relief such as cancellation of removal, thus removing immigration judge’s discretion to grant deportation relief in cases where the immigrants have significant community ties and equity.
- Created “expedited removal” giving immigration officers and border patrol unreviewable authority to summarily deport someone who attempts to enter with fraudulent or no document without the benefit of a hearing. Expedited removal significantly impedes access to asylum at ports of entry. Those who are summarily removed are barred from re-entry for a minimum of five years.
- Significantly expanded the scope of mandatory detention, including asylum-seekers who are subject to expedited removal until they can establish a credible fear of persecution.
- Created three- and ten-year bar preventing someone who left the United States from reentering if she has been unlawfully present in the U.S. for more than 180 days or 365 days prior to departure. (It was not until 2013 when U.S.C.I.S. created the provisional waiver allowing immigrants who accrued significant unlawful presence to leave the U.S. to process immigrant visa at consular posts overseas without being subject to the 3- or 10-year bar from re-entry, though they may still be barred from re-entry for other reasons.)
- Stripped immigration judge’s discretion to grant deportation relief based on the immigrant’s community ties and equities by raising the hardship standard and lengthening the years of residence for long-term residents seeking cancellation of removal (previously known as suspension of deportation) making this form of relief much more difficult to obtain.
- Imposed one-year filing deadline requiring asylum-seekers to apply for asylum within one year of arriving in the U.S., which has significantly harmed those who struggle with English, are not mentally ready to relive the trauma, who can’t understand the U.S. asylum system, who lack legal counsel and who struggle to establish a foothold in the U.S.
- Establish the 287(g) program deputizing local and state law enforcement to enforce immigration laws leading to racial profiling and erosion of public safety as immigrant communities lost trust in law enforcement.
The Illegal Immigration Reform and Immigrant Responsibility Act was the “cap stone” of the carefully orchestrated four-part anti-immigrant legislation that Congress passed in 1996. On April 26, 1996, Congress passed two laws: the Omnibus Consolidated Rescissions and Appropriations Act of 1996 and AEDPA. The appropriations bill restricted (and continues to) civil legal services that received any funding from Legal Services Corporation (LSC) from representing undocumented immigrants, challenging welfare reform and redistricting, filing class actions, engaging in legislative advocacy, or collecting attorneys’ fees, among other things. A month before Congress passed IIRIRA, it passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) that made recent immigrants who were not yet U.S. Citizens or had significant work history in the U.S. ineligible for most safety net programs funded by the federal government. Undocumented immigrants, unless grandfathered under the Act, would be ineligible for any federal benefits programs, including unemployment and housing subsidies. By defanging legal services lawyers under the appropriations bill, Congress made certain that once it moved forward with welfare and immigration reforms later in that year, there would be no legal services lawyers available to challenge these laws to protect immigrants and low-income people.
The George W. Bush Administration started 2001 attempting to create common ground with the Mexican government and Congress to fix the immigration system. The tragic events on September 11th snuffed any hopes for immigration reform. Rather, the fact that those hijacked the planes that day entered the U.S. with valid visas quickly conflated the conversation of immigration with terrorism. Instead of considering any legalization measures to regularize the status of the three million undocumented immigrants, Congress passed the Homeland Security Act a year after 9/11 on November 25, 2002. The new law yanked the Immigration and Naturalization Service (INS) from the Department of Justice and parked it with the newly created Department of Homeland Security cementing the enforcement-centric immigration policies that started with IIRIRA. No comprehensive immigration reform bills managed to pass Congress in the past twenty years, but the immense budget funding the Department of Homeland Security allowed immigration enforcement set in motion by IIRIRA to run on steroids, leading to the deportation of hundreds of thousands of immigrants, tearing apart families and disrupting our community.
I remember that morning on September 11, 2001. I was awakened at 6 a.m. Pacific Time when my staff called to alert me of the attacks on the Twin Towers and asked me if I would close the office that day. At that early hour, I could not fathom how the tragic events of that morning would forever change our country and hardened elected officials’ anti-immigrant attitudes. Just five months before 9/11, I was worrying how the collision of a U.S. Navy reconnaissance plane and a Chinese People’s Liberation Army naval plane over the South China Sea and the subsequent detention of the American crew members by the Chinese government had led to reverberating calls to invoke the national security law to put Chinese Americans in internment camp. Now with 9/11, it would be a different population who would bear the blunt of xenophobia. Vigilantes went out of their way to exert private justice by terrorizing and killing anyone who might look like the 9/11 hijackers. Sikh American men who wear turbans and long beards as part of their religious observance, individuals who looked Middle Eastern and South Asians became the targets of hate.
Since the first nationality law was passed in 1790 that determined who could be American citizens, our immigration laws have been casted and recasted by successive waves of politicians who may be themselves immigrants or a generation or two away from being immigrants to exclude, to vilify and to challenge the newcomers’ worthiness and fitness to enjoy equal justice and the rule of law. On this twentieth remembrance of 9/11, I grieve the lives lost to the tragic events. I am also saddened by our state of immigration that fails to recognize the humanity of the people coming here to seek sanctuary from persecution, war, corruption, political instability, poverty, starvation, who yearn for freedom, safety, stability, better opportunities, and the life we want for ourselves and our families.