Having practiced deportation defense in the 1990s, I am no Johnny-come-lately to immigration issues.
I remember the xenophobic backlash led by Gingrich against the 1986 Immigration Reform and Control Act (IRCA) signed into law by his fellow conservative, Ronald Reagan.
I remember, in other words, Gingrich as the Grinch who stole immigration reform.
Immigration Remorse Or Political Opportunism?
At a Republican Party debate during December, Gingrich discussed immigration in a manner uncommon for his contemporary political cohorts:
I don’t see how the party that says it’s the party of the family is going to adopt an immigration policy which destroys families that have been here a quarter century. And I’m prepared to take the heat for saying, let’s be humane in enforcing the law without giving them citizenship but by finding a way to create legality so that they are not separated from their families.
Like his political opponents, I was stunned by Gingrich’s comments.
The Immigration Legacy Of Newt Gingrich
In the view of some immigration activists, Gingrich’s statements herald a new beginning for immigration reform.
I don’t share that sentiment.
For almost two decades, going back to my early years as a San Diego immigration lawyer, I’ve witnessed the effects of Gingrich’s 1996 immigration reforms.
It hasn’t been pretty.
As the Speaker of the House of Representatives from 1995 to 1999, Gingrich was a leading architect of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).
Many aspects of the current immigration debate can be traced to IIRAIRA. The legislation, which followed the racist recipe of Gingrich’s “Contract With America” agenda, was a repudiation of Reagan’s 1980 policies.
Gingrich and his cronies did not merely change immigration law. They transformed how the American public views immigration issues.
They accentuated negative rhetoric, hostile imagery, and misleading arguments which now pervade the immigration reform debate.
The Devastating Impact Of IIRAIRA
Worse, IIRAIRA closed many avenues of defense against deportation for those trapped in the immigration court system. As a result, countless lives of immigrants and their family members have been destroyed.
A few examples:
(i) Suspension of Deportation
IIRAIRA eliminated Suspension of Deportation. For undocumented immigrants, this was often their only defense against deportation.
In its place, Congress inserted Cancellation of Removal.
A three-layer legal hurdle was placed before applicants.
First, the basic requirements to qualify for mere consideration were made more restrictive.
Second, applicants were forced to prove, if they are deported, that a higher degree of hardship – an “exceptional and extremely unusual” hardship – will be imposed on their U.S. or permanent resident spouses, children, or parents.
Further, IRRAIRA mandated the personal hardship of an immigrant facing deportation could no longer be considered by an immigration judge.
Third, as if those changes weren’t restrictive enough, IRRAIRA also set a limit on how many immigrants could be adjusted to lawful permanent resident status via winning their Cancellation of Removal cases.
The cap was set at 4,000 per year.
In practical terms, since our immigration court system has approximately 250 judges, each judge is allocated about 10.5 positive Cancellation of Removal grants per year. That’s less than one favorable grant of permanent residence per month per judge.
Put another way, there are about 300,000 new cases entering the immigration court system per year. Assuming only one-sixth of these cases involve Cancellation of Removal, the 4,000 figure is tantamount to an arbitrary 8% victory cap on total cases.
In reality, IIRAIRA set in place a system where judges award less than 4,000 affirmative cancellation decisions per year.
Immigration court statistics tell the story:
The Victory Cap
- 2006 – 3,138
- 2007 – 2,939
- 2008 – 3,028
- 2009 – 3,477
- 2010 – 3,982
(ii) INA 212(c)
IIRAIRA also eliminated relief for many lawful permanent residents under section 212(c) of the Immigration and Nationality Act.
Akin to Suspension of Deportation, the loss of 212(c) left them without any protection against deportation at immigration court.
Under 212(c), lawful permanent residents who had committed minor criminal offenses were given a second chance to remain in the U.S. To make such determinations, judges were allowed to weigh an immigrant’s negative equities, such as the nature and seriousness of convictions, against his or her positive equities.
Once 212(c) was eliminated, judges were stripped of their authority to exercise discretion if an immigrant’s conviction fell into certain categories. For many permanent residents, this has meant automatic deportation, even if the offense was only a misdemeanor under state law committed 20 -30 years beforehand.
As discussed in Deportations Without Judicial Discretion And Shattered Immigrant Families, a joint University of California, Berkeley and University of California, Davis study showed the effects caused by the elimination of 212(c) from 1997 to 2007:
The study covers LPR parental deportation between 1997 and 2007. The findings include:
Lawful Permanent Residents
- 87,884 LPRs were deported during the ten year period
- 68% of these LPRs were deported for minor, non-violent crimes
- The deported LPRs had lived in the U.S. an average of ten years, long enough to form families
Children of Lawful Permanent Residents
- 53% of the deported LPRs had at least one child living with them
- Deported LPRs had a total of 103,000 children
- 88,000 children of deported LPRs were U.S. citizens
- 44,000 children of deported LPRs were under the age of 5
Family Members of Lawful Permanent Residents
In addition, the study noted 217,000 other immediate family members (including U.S. husbands, wives, brothers, and sisters) were affected by the deportation of LPRs between 1997-2007.
Stealing The Obama Playbook?
The day after Gingrich’s announcement, political reporter Pilar Marrero noted, “Maybe he´s planning a book about it or maybe he just wants to shake republicans from their illusion that they actually have a political future without the Latino vote.”
I think his motive is more basic.
It’s election season.
Taking a page from the Obama playbook, he senses the desperation of immigration reformers to find someone to champion their cause.
Gingrich, like Obama, is hoping lip-service commitment leads to an influx of supporters on election day.
And as with Obama, it’s up to immigrant advocates to reject the false promises of the Grinch who stole immigration reform.