The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which took effect on April 1, 1997, included the most significant amendments to U.S. asylum law since the Refugee Act of 1980. Among its major provisions pertaining to asylum, the IIRIRA: (1) updated the definition of ‘refugee’; (2) updated the provision on non-refoulement, or withholding of deportation; (3) enacted new bars to eligibility for asylum; and (2) enacted a new expedited process for removal.
Many asylum proponents have seen the IIRIRA as Congress’s reaction to a wave of anti-immigrant sentiment, reflected in provisions that directly weakened protections to asylum-seekers. See Emily J. Johanson, The Migrant Protection Protocols: A Death Knell for Asylum, 11 UC IRVINE L. REV. 873 (2021). Some of those changes, apart from those listed above, included mandatory detention for some prospective asylums without case-by-case determination; the imposition of a one-year deadline for filing an application; and limits on judicial review. See id. (citing Ava C. Benach, Feature, The Border: How We Got Here, 34 CRIM. JUST. 27, 28-30 (2019); Karen Musalo & Marcelle Rice, The Implementation of the One-Year Ban to Asylum, 31 HASTINGS INT’L & COMPAR. L. REV. 693, 693 (2008)).
After the IIRIRA’s passage in 1996, most of the major revisions to asylum law have come not from Congress but from administrative pronouncements, regulations, and judicial decisions.
Revisions to Definition of Refugee
The IIRIRA expanded the definition of refugee to include the following category of persons:
[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.See IIRIRA § 601(a).
This amendment did not provide an automatic grant of asylum—instead, the drafters intended it to provide applicants with an enumerated ground for relief based on political opinion. See, e.g., Mohammed v. Gonzales, 400 F.3d 785, 800 (9th Cir. 2005) (“[T]he statute, which was enacted in order to overcome BIA rulings to the effect that forced abortions and sterilizations did not constitute persecution on account of one of the five reasons enumerated in the INA, does not in its text provide for automatic asylum upon a showing of past persecution.”). At its enactment, the IIRAIRA limited to 1,000 the number of individuals who could be admitted to the U.S. under the provision. The REAL ID Act of 2005 later removed that limitation.
Despite the amendment above, some immigration administrators have still denied asylum claims from applicants who have undergone forcible sterilization based on the paradoxical rationale that those who had been forcibly sterilized could not claim to fear future persecution because they could not be sterilized again. See Shoshanna Malett, Affirmative Asylum Claims from China Based on Coercive Family Planning, 06-06 Immigr. Briefings 1 at 5-6 (June 2006) (describing “an interesting paradigm,” where asylum applicants already sterilized could demonstrate past persecution but not a well-founded fear of future persecution, and so were denied asylum; but “applicants who were able to escape being sterilized were found to still have a well-founded fear of future persecution and were grantable”).
Bar to Withholding of Removal Based on Aggravated Felony
The IIRIRA included a new provision stating that a person who “has been convicted of an aggravated felony (or felonies) for which [he or she] has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime”–which means such a person would be ineligible for withholding of removal. See INA §241(b)(3)(B) (an applicant is ineligible for withholding of removal if he or she has committed a particularly serious crime).
We note here, briefly, the difference between asylum and withholding of removal, otherwise known as nonrefoulment. “Withholding of deportation,” or “withholding of removal,” is a doctrine that mandates the Attorney General “shall” not deport any alien to a country where the alien’s life or freedom would be threatened because of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C.A. § 1253(h)(1). The doctrine is analogous to the doctrine of nonrefoulment required in the 1967 UN Protocol. Asylum, in contrast, allows individuals to stay in the United States if they can establish a well-founded fear of persecution–rather than a threat to their lives or freedom. Historically, the standard for withholding of deportation has been stricter than for asylum, which meant aliens who could not establish eligibility for asylum necessarily could not establish eligibility for withholding of deportation. See Saleh v. INS, 962 F.2d 234, 240 (2d Cir. 1992) (ineligibility “for asylum establishes a fortiori that … deportation may not be withheld”). Before the IIRIRA, persons convicted of aggravated felonies already had been statutorily ineligible for asylum even before the IIRIRA. See 8 U.S.C. § 1158(d) (1994) (“An alien who has been convicted of an aggravated felony… may not apply for or be granted asylum.”). The IIRIRA thus extended that bar also to persons seeking withholding of removal.
The Board of Immigration Appeals (BIA) has interpreted the aggravated felony bar as complying with the 1967 UN Protocol, which means persons who have committed an aggravated felony would not be protected under the U.S.’s non-refoulement obligations under that treaty, even if the crime committed would not be considered particularly serious under international law. See Matter of Q–T–M–T–, 21 I&N Dec. 639, 655 (BIA 1996). Many of those applicants are limited to pursuing a claim for relief under the Convention Against Torture (“CAT”).
Bars and Restrictions to Grant of Asylum
The IIRIRA added new bars to asylum, meaning under the new provisions, a person cannot gain asylum if that person (1) may be removed by the U.S. to a safe third country; (2) did not file for asylum within one year after arriving in the U.S.; (3) was previously denied for asylum; or (4) for terrorist-related activities. See INA §208(a)/8 U.S.C. §1158(a)(2).
INA § 208(b) further restricted persons from being eligible for asylum if that person has participated in persecution or terrorist-related activities, has been convicted of a serious crime, or otherwise poses a danger to the United States. See INA §208(b)/8 U.S.C. §1158(a)(2).
Expedited Removal, or Summary Exclusion
Finally, the IIRIRA enacted new procedures referred to as summary exclusion–a process by which a noncitizen who arrives at the U.S., or who is within the U.S., with false or no documents would be removed without further review or hearing, unless that person applies for asylum, has been granted permanent residency or the status of refugee or asylee, or has resided in the U.S. for over 2 years.
Before the IIRIRA, the so-called “entry doctrine” delineated a distinction in the removal process for an incoming alien versus removal of an alien already within U.S. borders, based on the notion that procedural due process protects aliens within U.S. borders. See Philip Geller, Annotation, Procedural Due Process Requirements in Proceedings to Exclude or Deport Aliens-Supreme Court Cases, 74 L. ED. 2D 1066, 1069-70 (1996). The entry doctrine distinguished between removing an incoming alien, termed “exclusion,” and removing an alien within U.S. borders, termed “deportation.” Dulce Foster, Judge, Jury and Executioner: INS Summary-Exclusion Power under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 82 MINN. L. REV. 209, 219 (1997).
The IIRIRA eliminated that distinction, and instead adopted the “removal hearing” as the only forum where aliens may present their immigration claims. Under that new regime, an alien’s status–as newly arriving, or already within U.S. borders–no longer determined the procedural protections they received. The IIRIRA also exposed aliens to the threat of summary exclusion since it guaranteed a removal hearing only to aliens whom the INS had admitted with valid documents, or who can demonstrate they had lived in the U.S. for over 2 years. See 8 U.S.C. § 1225(b). Aliens who could not show either are subject to summary exclusion, which the IIRIRA terms as “expedited removal.”
The summary exclusion provision states:
(A) Screening8 U.S.C.A. § 1225(b)(1)(A)(i).
(i) In general If an immigration officer determines that an alien  who is arriving in the United States or [who has not been physically present in the U.S. for more than 2 years] is inadmissible …, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum  or a fear of persecution.
To sum: the summary exclusion process begins when an inspection officer determines that an alien arriving in the U.S., or who has been in the U.S. for 2 years or less has fraudulent or no valid immigration documents. The IIRIRA requires that officer “shall order” to remove an alien from the U.S. without additional hearing or review, unless the following exceptions apply:
- individuals who indicate an intent to apply for asylum, or a well-founded fear of persecution, whose cases are then subject to further review;
- individuals who arrived by aircraft and are citizens in Western Hemisphere countries with whom the U.S. does not have full diplomatic relations;
- battered women and children, if they can demonstrate their entry into the U.S. is related to their experiences of domestic abuse;
- individuals who swear under oath they are legal permanent residents, refugees, or asylees, in which case the removal order would be subject to administrative appeal.
See IIRIRA § 302(a); § 304(a)(3).
After the IIRIRA’s enactment, these provisions expanded to include persons apprehended within the U.S. if they are found within 100 miles of the Mexican or Canadian border, or within less than 14 days of entry. See Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877 (Aug. 11, 2004); DHS Press Release, Department of Homeland Security Streamlines Removal Process Along Entire U.S. Border (Jan. 30, 2006), www.dhs.gov/xnews/releases/press_release_0845.shtm (expanding rule to entire U.S. border). The Trump administration also has issued an executive order expanding the use of expedited removal. See Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017).
Table of Authorities
- 8 U.S.C. §1158(a)(2)
- 8 U.S.C. § 1158(d)
- 8 U.S.C. § 1225(b)
- 8 U.S.C § 1253(h)(1)
- INA §241(b)(3)(B); 8 U.S.C. § 1231(b)(3)
- IIRIRA § 302(a); § 304(a)(3)
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005)
- Saleh v. INS, 962 F.2d 234 (2d Cir. 1992)
- Matter of Q–T–M–T–, 21 I&N Dec. 639 (BIA 1996)
- Border Security and Immigration Enforcement Improvements, 82 Fed. Reg. 8793 (Jan. 25, 2017)
- Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877 (Aug. 11, 2004)
- DHS Press Release, Department of Homeland Security Streamlines Removal Process Along Entire U.S. Border (Jan. 30, 2006), www.dhs.gov/xnews/releases/press_release_0845.shtm.
- Ava C. Benach, The Border: How We Got Here, 34 CRIM. JUST. 27 (2019)
- Dulce Foster, Judge, Jury and Executioner: INS Summary-Exclusion Power under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 82 MINN. L. REV. 209 (1997)
- Emily J. Johanson, The Migrant Protection Protocols: A Death Knell for Asylum, 11 UC IRVINE L. REV. 873 (2021)
- Karen Musalo & Marcelle Rice, The Implementation of the One-Year Ban to Asylum, 31 HASTINGS INT’L & COMPAR. L. REV. 693 (2008)
- Philip Geller, Annotation, Procedural Due Process Requirements in Proceedings to Exclude or Deport Aliens-Supreme Court Cases, 74 L. ED. 2D 1066 (1996)
- Shoshanna Malett, Affirmative Asylum Claims from China Based on Coercive Family Planning, 06-06 Immigr. Briefings 1 (June 2006)