Two laws passed in 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), radically changed immigration law by expanding the reasons a person could be deported, by limiting the power of immigration judges to grant discretionary relief, and by limiting the power of the federal courts to review deportation decisions. For instance, under these laws, people who have committed only minor criminal offenses, such as shoplifting, can be subject to deportation. As a result, the number of removals has increased dramatically, going from 69,680 in 1996 to 409,849 in 2012. David Paterson recognized the inherent injustice of this system when, as governor of New York, he pardoned dozens of people facing deportation based on criminal convictions because, in his words, “they should be protected from inflexible and misguided immigration statutes."
In criminal law, the expectation is that the punishment should fit the crime. We expect that those with greater culpability, who do the greatest harm, will be punished with the most severe sentences and that individuals whose conduct is the most understandable will be extended greater leniency. Immigration law lacks this sort of graduated recognition of culpability and has little flexibility to extend leniency. In many cases, people who would seem to have significant factors that should weigh in their favor, such as families of U.S. citizens and long-term residents, are deportable and there is no mechanism to balance the equities involved in their cases. Many Americans, unfamiliar with the unforgiving nature of immigration law, are often shocked when they hear one of the thousands of heartbreaking stories of families torn apart by a system that does not give judges the authority to act fairly and reasonably.
This issue is compounded by the fact that nearly half of the individuals facing deportation have no access to legal assistance. In recent decades, immigration law has not only grown harsher, its legal complexity has expanded to the point where it has been described as a “labyrinth almost as impenetrable as the Internal Revenue Code.” Fully understanding its laws, policies, regulations, and precedents is beyond the ken of most lawyers, much less a layperson facing deportation. Under current immigration law there is no provision to provide legal representation to individuals who cannot afford to hire a lawyer and the patchwork of non-profit legal service organizations that offer assistance lacks the resources to meet the existing needs. Having legal representation can be the difference between staying with one’s family in the U.S. or facing banishment and separation. A study initiated by Judge Robert A. Katzmann of the U.S. Court of Appeals determined that individuals with representation have a 500 percent greater chance of receiving favorable outcomes in their cases than those without. Similarly, a project by the City Bar Justice Center, which interviewed unrepresented individuals in a New York immigration detention facility, found that 39.2 percent of those detained might have meritorious claims for relief from deportation.
Prior to the passage of AEDPA and IRRIRA in 1996, it may have been realistic for an unrepresented person in immigration court to argue to an immigration judge that their position as a hard-working, tax-paying, parent of U.S. citizen children should outweigh a minor immigration violation or minor criminal offense. Now, however, such commonsense balancing of equities is not permitted and immigration cases turn on complex questions of statutory interpretation and knowledge of legal precedents inaccessible to anyone but an immigration lawyer. Between the harshness of the 1996 laws and the lack of access to legal representation, many fighting to stay with their families find that they must do so with both arms tied behind their backs. Under such a system, miscarriages of justice are systemic and inevitable, not the exception. If vigorous enforcement is going to be a continuing component of immigration policy, reform should assure that it is done in a manner that is consistent with our principles of fairness, due process, and justice.
Salyer is the staff attorney for the Arab-American Family Support Center, a non-profit social services organization located in Brooklyn. Additionally, He iis an adjunct assistant professor of sociology at Barnard College, Columbia University and a graduate student in anthropology at the City University of New York.