IIRAIRA at 20: Still Punitive and Unequal

09/30/2016 06:59 pm ET Updated Oct 01, 2017

Co-authored by Ruth Gomberg-Muñoz and Sarah Horton (bios below)

Today marks the 20th anniversary of an immigration bill that has irrevocably damaged the prospects of millions of undocumented immigrants to ever change their legal status. Passed on September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) put bars in place that make it impossible for many undocumented people to become legal, even when they have lived in the United States for many years and have close family members who are US citizens.

IIRAIRA's bars often divide families across borders and lead to extended separations--discouraging many undocumented immigrants from attempting to adjust their legal status even when they are eligible. This is not only destructive to the principle of family unity upon which our immigration system is supposed to rest, but it also undermines our values of equality. This is because IIRAIRA's bars disproportionately penalize undocumented Latinos.

IIRAIRA created a division within the undocumented population based on their mode of entry to the United States. Nearly half of the estimated 11 million undocumented people in the U.S. entered lawfully with a visa, then overstayed its expiration date or otherwise violated its terms. The other half entered without permission, usually by surreptitiously crossing a land border. The IIRAIRA established a legal distinction between these two groups of undocumented immigrants. It determined that visa overstayers had been lawfully admitted to the U.S., while border crossers had not.

This has two important consequences for border crossers. First, in order to legalize their status, border crossers must leave the country and apply to be admitted--as though they were never here. In contrast, because visa overstayers have been lawfully admitted, they do not have to leave and apply for admission--they can often adjust their status from within the United States.

Second, applicants for lawful admission must prove that they do not meet any "grounds of inadmissibility." Yet one ground of inadmissibility is a history of unlawful presence in the United States. Anyone who has lived in the U.S. unlawfully between 180 days and one year is barred from re-entry for three years. Anyone who has lived in the U.S. unlawfully for more than one year is barred from re-entry for 10 years.

In the U.S., immigration law has historically allowed immigration judges to consider factors such as length of residence, family ties, work history, or good moral character when rendering immigration decisions. Yet under IIRAIRA, these bars are automatic and non-discretionary. Moreover, because they are triggered when a person leaves and applies to come back, they almost exclusively apply to border crossers and not to visa overstayers. And working-class Latinos are much more likely to be border crossers than are other undocumented people.

In treating visa overstayers and unlawful entrants differently, IIRAIRA reinforces distinctions among the world's migrant population in terms of race and class. This inequity also persists in the temporary visa system. Most of the world's wealthiest nations--including most European countries, such as England, France, Germany, Sweden, Austria, the Netherlands, Finland, Greece, and Spain, as well as Australia, New Zealand, Japan, Taiwan, and South Korea--are part of the U.S. Visa Waiver Program. Citizens of these nations do not need a visa to enter the US. Instead, they can enter lawfully and stay up to 90 days without a visa; this makes them very unlikely to ever be unlawful border crossers.

For the rest of the world, however, obtaining a temporary visa to visit the US is often based on a person's assets in the home country. Ample assets are considered evidence that visitors will return home promptly after a visit, making middle-class and wealthy people more likely to be granted these visas than poor and working-class people.

The confluence of several factors--a long history of migration, geographic proximity, restrictive immigration policies, and the likelihood that prospective Latino immigrants will be working-poor--makes undocumented Latinos more likely to be unlawful entrants than undocumented people from elsewhere in the world. IIRAIRA makes undocumented Latinos more likely to face extended bars to their legal re-entry than undocumented people from elsewhere in the world. In short, IIRAIRA deepens the injustices of how we award temporary visas, reinforcing invidious distinctions among undocumented immigrants in terms of race and class.

Many Americans remain unaware that visas are awarded differently to rich and poor nations and are unaware of the penalties that IIRAIRA imposes on border crossers. This, in turn, fosters the perception that Latinos who are unable to change their legal status are somehow "undeserving" due to their supposed disproportionate breaking of the rules.

Is it fair to continue to follow a law that reinforces these inequities? We side with the Immigrant Justice Network, Human Rights Watch, the ACLU, more than 80 immigrant advocacy organizations, and many members of Congress in arguing that we must repeal this draconian law that divides families and imposes formidable hurdles to Latinos' legalization.

This April, Representatives Raúl Grijalva (D-AZ), Keith Ellison (D-MN), and Judy Chu (D-CA) proposed a Congressional resolution that would repeal the extended bars on legal re-entry and restore discretion to immigration judges to waive grounds of inadmissibility and deportability. This should be a cornerstone of the movement to reform our immigration system and provide undocumented immigrants with a pathway to legalization--a proposal that continues to enjoy great public support. To restore fairness and humanity to our immigration system, join the Fix '96 campaign today.

Ruth Gomberg-Muñoz is Assistant Professor of Anthropology at Loyola University and author of Becoming Legal: Immigration Law and Mixed Status Families.

Sarah Horton is Associate Professor of Anthropology at the University of Colorado-Denver and author of They Leave Their Kidneys in the Fields: Illness, Injury, and "Illegality" among U.S. Farmworkers.