It Is Time for a New Way Forward

In 1996, at the height of the “tough on crime” era, President Bill Clinton signed two laws that dramatically changed the criminal legal system and radically altered the U.S. immigration system. Just as the 1994 crime bill instituted unjust mandatory minimum sentences and ballooned the prison population, the immigration bills of that same era led to similarly disastrous consequences for immigrants — an explosion in the growth of detention and unfairly harsh punishments for immigrants, including mandatory deportations for minor crimes. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) resulted in today’s draconian immigration enforcement system. The system only expanded with the increased criminalization of immigrants, who are then funneled into the detention and deportation pipeline — often with little to no due process. 

Reps. Jesús “Chuy” Garcia, Pramila Jayapal, Karen Bass, and Ayanna Pressley, in December 2019, introduced the New Way Forward Act (H.R. 5383), groundbreaking legislation that reimagines what a fair and just immigration system looks like. The bill restores fundamental due process protections for immigrants by ending the mandatory detention of immigrants without the right to release on bail while a judge reviews their case — sometimes subjecting people to years of incarceration. The legislation also breaks down automatic pipelines to deportation from the criminal legal system. For example, the bill would end the 287(g) program, which allows local police to act as federal immigration agents, exacerbates racial profiling, and empowers sherriffs, as was the case with Joe Arpaio. The bill would also end the automatic deportation of people who have had contact with the criminal legal system. This legislation also decriminalizes migration by ending federal criminal prosecutions for improper entry and reentry to the U.S. Not only is this a waste of government funding, it also misguidedly treats migration as a criminal act. 

Decades after the failures of the 1994 crime bill, Congress is tackling the injustices of our criminal legal system. Yet many of those same injustices are replicated in the immigration system, and should be similarly addressed. Take for example U.S. Army veteran and ACLU of Southern California client Hector Barajas. After being honorably discharged, Hector — like many veterans who return to civilian life with little support from our government — had difficulty adjusting and served three years in prison for a crime involving a firearm. Hector, a legal permanent resident, was immediately subject to the 1996 immigration laws. During his deportation hearing, the law prevented an immigration judge from considering the equities in his case, including his years of military service. Instead, the law mandated his incarceration in immigration jail, and ultimately required the judge to order him deported. In 2017, Hector received a pardon from Governor Jerry Brown and in 2018, he became a U.S. citizen.

Mark Hwang is another example of someone impacted by the 1996 laws. An ACLU client, Mark was stopped by ICE for changing lanes without a signal. He was on his way to meet his wife and newborn twins, and had his one-year-old in the car. After his arrest, Mark, who was a legal permanent resident, was subjected to mandatory detention and detained without a bond hearing for six months — kept from his children and leaving his wife to care for their three infants — because of a decade old marijuana possession conviction for which he had already served his sentence. Just as he was on the brink of  signing deportation papers, Mark got a bond hearing, thanks to a federal court order in an ACLU lawsuit. Mark was finally released on bond, allowing him a real shot at fighting his deportation. He was able to work with an attorney to have his marijuana charge vacated, removing the threat of deportation. 

People like Hector and Mark are in a small minority. Far too many immigrants are locked up and summarily banished from this country without real due process. The ACLU enthusiastically supports the New Way Forward Act, which if passed will change the lives of countless immigrants and communities and restore due process in our immigration system. The bill sets a framework for Congress to recognize and fix our broken immigration system and build a new one that gives everyone their fair day in court. It is past time for Congress to pave a new way forward in our U.S. immigration system.