How a Clinton-Era Law Is Still Criminalizing Immigrants Today

Illegal Immigration Reform and Immigrant Responsibly Act reinforced the idea that there are "good" immigrants and "bad" immigrants, and the bad ones should be deported straight away.

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Oct 17 2016, 4:00am

Photo via Wikimedia Commons

February 21, 2016, started as a routine day for Victor Alvarez. He went to work at Krispy Kreme, expecting his dad to pick him up when he finished his shift. But at 10:30 PM, Victor looked out the window and saw that his father, Jose, had been pulled over by the police right in front of the store, for what he later learned was a broken headlight.

The situation quickly deteriorated. Jose had a criminal record—a nonviolent drug charge from over 20 years ago, for which he had been deported, along with the crime of reentering the country shortly thereafter to be reunited with his young children. That didn't matter to the police officer, who quickly notified ICE that it had Jose Alvarez in custody.

In just a few short hours, Victor's whole life changed. By the early hours of the morning, his father had been deported to Mexico.

Throughout this presidential election season, Democrats have been pushed to acknowledge the central role the party played in contributing to mass incarceration and the criminalization of communities of color. Activists and scholars have specifically focused on a series of "tough on crime" bills passed during the 1990s, including the 1996 welfare reform act (known as the Personal Responsibility and Work Opportunity Reconciliation Act) and the 1994 crime bill (known as the Violent Crime Control and Law Enforcement Act).

But there was also another crucial bill passed during the 1990s—the one responsible for Jose Alvarez's deportation. Twenty years ago this September, President Bill Clinton signed the Illegal Immigration Reform and Immigrant Responsibly Act (IIRIRA) into law. Now immigrant activists are campaigning to bring Jose Alvarez back home, and to raise awareness about the impact of IIRIRA on thousands of families across the country.

Like most immigration stories, this one begins with the hope of a better life. Jose Alvarez came to the United States in 1979, in search of job opportunities. He was undocumented, but got a green card under the 1986 immigration reform law. Several years later, in 1995—after he was already married with children—Jose was arrested and convicted on two drug charges for possessing meth. He spent more than three years in prison. When Jose was released in 1999, his green card was revoked, and he was deported.

If not for IIRIRA, Jose might still be in the United States. Both IIRIRA and another bill passed in 1996, the Anti-terrorism and Effective Death Penalty Act (AEDPA), vastly expanded the number of people who were eligible for detention and deportation. Relatively minor, nonviolent crimes—like burglary, tax evasion, and a broad number of drug offenses—were now considered "aggravated felonies" in the administrative immigration context, even if those same crimes did not constitute felonies, aggravated or otherwise, under criminal law.

Importantly, IIRIRA has been applied retroactively, meaning Jose and others convicted of crimes prior to 1996 can still be deported under the law. IIRIRA and AEDPA also made detention and deportation mandatory for a vast number of criminal offenses, so immigration judges cannot provide relief based on circumstances of individual cases.

Jose Alvarez. Photo courtesy of the Alvarez family

Shortly after he was deported for the first time, Jose crossed back into the US to be reunited with his kids and wife. He rebuilt a peaceful and productive life in Long Beach—buying a home, raising six kids, even sending one son into the Marines—until his recent, fateful run-in with the police.

Jose's story is a classic example of how IIRIRA has operated, according to David Hernández, an assistant professor of Spanish, Latina/o, and Latin American Studies at Mount Holyoke College and an expert in immigration policy. "Instead of catching people who arrived recently—like deported people who got caught along the border—[IIRRA] created a whole era of interior enforcement," he told me.

In the late 90s, as a result of IIRIRA and AEDPA, detention tripled and became the fastest growing form of incarceration, said Hernández. Deportations also increased rapidly.

"Obama—and Bush before him—couldn't have become the deporter in chief without these laws," Hernández told me.

During this election season, Black Lives Matter and other activists have insisted Hillary Clinton take responsibility (with limited success) in pushing for the passage of welfare reform and the crime bill. But the impact of our flawed criminal justice system on non-citizens remains largely unacknowledged by Democrats and poorly understood by the American public.

"The immigration detention system is obscure—nobody really sees it, even though it's directly related to the criminal justice system in a sequential way," explained Hernández, the Mount Holyoke professor.

Indeed, Obama's policy—deporting "felons not families"—and broader Democratic approaches to immigration reform have mostly reinforced the core idea behind IIRIRA: that the "good" citizens are noncriminals, and the "bad" ones must leave.

Lina Newton, an associate professor of political science at Hunter College, told me that it wasn't just the "tough on crime" approach that linked IIRIRA, the crime bill, and the welfare bill. Over the 1980s and 1990s, according to Newton, there was a growing "division in public mind between taxpayers and the people who live off them." This logic shifted toward immigration, which manifested most overtly in the overwhelming 1994 passage of California's Proposition 187, which denied all but emergency medical care to undocumented people and their children (although it was never enforced).

The 1990s represented a "turning point for immigration becoming linked into the welfare reform discourse," which combined with existing understandings of the immigrant-as-criminal. In that sense, IIRIRA was shaped both by an increasing "tough on crime" rhetoric and an aggressive push to punish those perceived as "freeloaders."

For Victor Alvarez and his family, whatever the reasons for its passage, the impact of IIRIRA could not be more real. His father is now living with relatives in Tijuana, and although Victor, his mother, and his siblings often visit on the weekends, being divided by a border has taken an emotional toll on everyone.

"[My dad] says he's OK, but I can tell he's not OK—we all can tell," Victor told me. "He just puts on a strong face, so we won't be worried about him."

With the main breadwinner in the family now gone from the United States, the deportation has also cost the family financially. Victor recently dropped out of college to help support his siblings and mothers.

Last month, on the 20th anniversary of the bill being signed into law, the National Day Laborer Organizing Network (NDLON) and a range of advocacy groups sent a letter to former President Bill Clinton, asking him to sign a petition to bring Jose Alvarez back home. (There's also a petition circulating to support that demand.)

"Everybody in the [immigration rights] community knows that '96 was bad," Salvador Sarmiento, the national campaign coordinator for NDLON, told me. "But nobody knows where to start the conversation. And that's why the specific ask to bring Jose back is important."

Although Hillary Clinton has publicly agreed to repeal one provision of IIRIRA if elected—the three and ten years bans on reentry for people who had overstayed their visas or entered the US without authorization—she has said little about whether she would seek to rollback other facets of the legislation.

Asked what NDLON says to Secretary Clinton if it could speak to her campaign directly, Sarmiento was clear. "Her party is responsible for this terrible law that is keeping this family apart and many thousands of families like them. We would ask, would she take a stand and join the effort to bring Jose back?"

Neither the Clinton Foundation nor Hillary Clinton's campaign team responded to comment requests from VICE about whether they would support the petition.

When I asked Victor Alvarez to share his thoughts about the future, and whether he thought the campaign to bring his father back would be successful, he didn't hesitate.

"You have to be hopeful," he told me. "There's a chance."

Follow Aviva Stahl on Twitter.

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