The 1996 Immigration Law Behind Most of Today's Border Fights

Turn on any cable news channel on any night and count the immigration terms that come flying by. Expedited removal. The ten-year bar. 287(g). Entry-exit. E-Verify. The pundits say them like they are the names of the latest controversies, as if somebody invented them last Tuesday to cause trouble. Here is a surprise that ought to be taught in every civics class: nearly every one of those terms comes from a single piece of legislation, written by a Republican Congress, signed by a Democratic president, and tucked inside a giant spending bill at the end of September 1996. It is called the Illegal Immigration Reform and Immigrant Responsibility Act, and most people who argue about its contents have never read its table of contents.

So let me read it for you. I will walk through the major provisions, name the section of the Immigration and Nationality Act that each one lives in, and tell you which of them have been used hard and which have been collecting dust. If you can get this down, you can out-argue most of the panel.

Who wrote it and who signed it

Start with the politics, because it is the part everybody gets wrong in both directions. The 104th Congress, elected in the 1994 landslide that gave Republicans control of both chambers for the first time in decades, took up immigration as a major project. Representative Lamar Smith of Texas led the House effort, and Senator Alan Simpson of Wyoming, the same Simpson of the 1986 law, led in the Senate. The immigration provisions rode inside the large omnibus appropriations bill for fiscal year 1997, which President Bill Clinton signed on September 30, 1996.

That means the statute has two sets of fingerprints, and an honest argument has to acknowledge both. Republicans wrote the toughest provisions. A Democratic White House, in an election year, signed them and bragged about the border. If someone tells you that tough immigration enforcement is purely a Republican invention, point to the signature. If someone tells you that Democrats have always opposed it, same answer. The truth is that in 1996 the political center of both parties was in the same place, and the ground has moved a lot since.

The map: what the law changed

The 1996 act did several big things at once. I will take the ones that matter most in the order the news cycle uses them.

Expedited removal: INA section 235(b)(1)

Before 1996, anyone who arrived at a port of entry without proper documents could demand a hearing, and the hearing could drag on while the person was released into the country. The new section created a faster path. If an immigration officer decides that an arriving person is inadmissible because he used fraud or misrepresentation, or lacks valid entry documents, the officer may order him removed without a hearing before an immigration judge.

There is a safety valve, and it matters. If the person says he fears persecution or wants to apply for asylum, the officer must refer him to an asylum officer for a screening interview, the credible-fear interview, which asks whether there is a significant possibility that he could establish eligibility for asylum. If he passes, he goes into the regular system, covered in Asylum Was Built for Persecution, So Why Does Waiting Count as Winning?. If he fails, the removal order stands, subject to a limited review by an immigration judge.

Originally this applied at ports of entry. The law allowed the executive branch to designate additional categories of people, by publication in the Federal Register, so its reach has expanded and contracted with different administrations. Look up the current Federal Register notice to see where it stands before you tell anyone the rule.

The three-year and ten-year bars: INA section 212(a)(9)(B)

This is the provision that does the most quiet damage to families. If a person has been unlawfully present in the United States for more than 180 days but less than a year, and then leaves, he is barred from returning for three years. If he has been unlawfully present for a year or more and then leaves, the bar is ten years. A separate and harsher rule, section 212(a)(9)(C), makes some people who return unlawfully after a long period of unlawful presence, or after being removed, permanently inadmissible, subject to a narrow exception.

Think about what the law does here. A hypothetical makes it vivid. Picture a man who crossed the border without being inspected and has now been here for four years. He has a wife who is a citizen, and they have two children. Because he was never admitted, he generally cannot get a green card through her without going home to apply at a consulate. (A man who entered on a visa and overstayed is usually in a different position, because an immediate relative of a citizen who was inspected and admitted can often adjust status without leaving.) The law treats his departure as the trigger for the ten-year bar. That is ten years from the day he leaves. If he leaves in year four of his stay, the earliest the bar expires is year fourteen of the whole story: 4 + 10 = 14. A waiver exists for people who can show that a citizen or permanent-resident spouse or parent would suffer extreme hardship, but it is discretionary, and the person has to leave the country before he knows how the application will turn out.

I want you to see the policy logic clearly, because it is a double-edged thing. The drafters wanted to attach a cost to overstaying, so that nobody would treat a visa like a suggestion. That is a defensible goal. The side effect is that the people most likely to be stuck are the ones who would otherwise leave and fix their status. For conservatives, it is a real argument about whether the bar is calibrated right, not about whether bars should exist.

287(g) partnerships: INA section 287(g)

The 1996 law added a subsection that lets the federal government sign written agreements with state and local law enforcement, authorizing trained local officers to perform specified immigration functions under federal supervision. The idea was to multiply enforcement capacity by pairing federal authority with local presence.

For six years the provision sat there. The first agreement was signed in 2002 with Florida. Since then, agreements have grown and shrunk with administrations, and they have come in different models, including officers who work inside jails to screen people already in custody, and task-force arrangements for the street. A county sheriff who wants to know what is involved can find the practical steps in A County Sheriff's Playbook for Joining ICE Under 287.

Entry-exit tracking: section 110 of the 1996 act

Section 110 told the Attorney General to build an automated system that would record the arrival and departure of every non-citizen and match the two records, so the government could identify people who came on a visa and never left. This is the system that would answer the question "how many people overstayed?" with a number instead of an estimate.

It is among the most ignored provisions in the law. Congress renewed the demand repeatedly, including after the attacks of 2001 and on the recommendation of the 9/11 Commission, which pressed for a biometric exit system. The arrival side was built. Departure records at airports and seaports are collected largely from airline manifests, and a comprehensive biometric exit system for land borders has been much harder to build. The full story is in The Visa Overstay Problem and the Exit Tracking Congress Ordered in 1996.

The E-Verify pilot: Title IV

The 1996 act authorized three pilot programs for confirming employment eligibility, one of which was called the Basic Pilot and later became E-Verify. The programs were written as temporary experiments, and Congress has kept the program alive through repeated extensions. In 2009 a federal rule required it of certain federal contractors. For most private employers it is voluntary unless a state law says otherwise. You can see why the 1986 promise on employer sanctions took so long to be even partly kept: Reagan Signed the 1986 Amnesty and Got Only Half of the Bargain tells the first half of that story, and E-Verify Explained, the Free Federal Check Most Employers Skip tells the current one.

The provisions people forget

A few other pieces are less famous and just as important.

• One kind of proceeding. Before 1996 there were separate hearings called deportation and exclusion. The new law merged them into one process called removal, set out in INA section 240. Almost every case described in Inside a Removal Case From Notice to Appear to the Plane Ride runs under that section.
• Cancellation of removal. The law replaced the old form of relief called suspension of deportation with cancellation of removal, under INA section 240A, with stricter standards.
• Reinstatement of prior orders. Section 241(a)(5) says that if a person who was removed comes back illegally, the old order is reinstated and he cannot reopen it or apply for most forms of relief.
• Aggravated felony. The law expanded the list of crimes that trigger mandatory consequences.
• Limits on court review. Section 242 narrowed the ability of courts to review many removal decisions.
• The affidavit of support. A sponsor who brings a relative must sign a legally enforceable promise to support him, with income of at least 125 percent of the federal poverty line.
• Barrier authority. Section 102 of the act authorized construction of barriers and roads near the border and gave the government power to waive other laws that might slow construction. The waiver was strengthened by a later statute. If you want to know what barriers can and cannot do, What a Border Barrier Actually Does, and What Honest Critics Get Right takes it up.

Which parts were used and which sat on the shelf

Here is my scorecard, and it is an argument, so treat it as one.

Used hard. Expedited removal at the ports, the three- and ten-year bars (they operate every day at consulates), the single removal proceeding, the reinstatement rule, and the expanded aggravated-felony list. These tools run on their own steam because they apply automatically at the moment a person touches the system.

Used unevenly. 287(g). It depends on whether a federal administration wants it and a local sheriff chooses to participate. The 2002-and-after history shows the provision can grow or shrink with the politics.

Shelved or half-built. Entry-exit tracking, particularly on the departure side, and the mandatory use of electronic employment verification. These are the two provisions that would have given the government the data to enforce the rest.

Here is a fair-minded pattern worth noticing. The parts that work without anyone's affirmative effort were used. The parts that required money, new systems and a government willing to be unpopular with employers or travelers sat on the shelf. That is the same story as 1986, replayed at larger scale.

The strongest objection

The critic's best argument goes like this: "These provisions are too harsh. The ten-year bar traps families. Expedited removal denies people a hearing before a judge. Limits on judicial review remove checks on the executive. A tough law can be a cruel one."

Take that seriously, because parts of it have merit. Conservatives who care about the Constitution should be uneasy about any process that strips the independent review of an executive decision. Due process is not a liberal invention. It is in the Fifth Amendment, which speaks of "persons," not "citizens." The answer for a conservative is not to wave the objection away. It is to separate the design from the abuse: expedited removal for a person caught with a fraudulent document at an airport is easy to defend, and expedited removal stretched to people who have been inside the country for a long time is a harder case that deserves a hard look from Congress, not just an executive notice.

And there is a second honest point. A rule like the ten-year bar was written to deter overstays, and it may be doing that. But if its main effect is to freeze people in place, then the rule defeats the very orderliness it was meant to create. Congress can change it. It does not need a court's permission.

What this means for the argument you have at dinner

Next time you hear someone say "the border is broken because of what Congress did last year," ask them to name the year. For most of the machinery the answer is 1996. That year gave us the toolbox: fast removal at the border, a bar that punishes overstays, a way to deputize local officers, an instruction to track entries and exits, and a pilot for checking workers. The ongoing fight is about whether to finish the work the toolbox implied. Part of the answer lies in the party's own history, which Four Decades of Republican Immigration Fights, From Reagan to the Gang of Eight traces.

If you want to read the statute for yourself, search for its public law number on Congress.gov, then turn to the Immigration and Nationality Act on the House Office of the Law Revision Counsel's site, where the current text is organized by title 8 of the U.S. Code. The sections above are your map.

The bottom line

• The 1996 act, signed September 30, 1996, is the source of expedited removal, the three- and ten-year reentry bars, 287(g) agreements, the entry-exit mandate and the E-Verify pilot. A Republican Congress wrote it and a Democratic president signed it.
• The tools that operate automatically got used. The ones that needed money, new systems and political courage, entry-exit tracking and mandatory employment verification, sat on the shelf.
• Argue about calibration, not slogans: whether the bars are set right, how far expedited removal should reach, and whether Congress or the executive should decide.
• If you are a sheriff, a small employer or a family member of someone caught in the bars, read the actual section before you rely on what you heard on TV.
• Ask for the section number whenever somebody cites a rule. If they cannot give it, they are repeating a slogan.