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The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was approved by the One Hundred Fourth U.S. Congress, and was signed into law by President Clinton on September 30, 1996.

The evolution of this federal law began just after Republicans assumed majority party status in the House and Senate after the 1994 mid-term elections. Moved forward under the leadership of then-House Speaker Newt Gingrich, the evolution of this Act was long and contentious.

The Act was a major step forward on securing our borders. Among other things, it provided for a dramatic increase in the number of Border Patrol agents; allocated $12 Million for a 14-mile triple fence along the US border from San Diego eastward; provided funding to the INS for acquisition of state-of-the-art equipment including aircraft, helicopters, night vision goggles and four-wheel-drive vehicles.

A critical focus of the Act was to provide stronger enforcement efforts and penalties for persons who: attempt to enter the U.S. illegally; smuggle immigrants into our country; or live inside U.S. borders without proper documentation.  A key driver of the legislation was a popular groundswell to improve oversight of immigrants to reduce and/or eliminate those aliens who had strong propensities toward bad behaviors.

By way of background, a wave of people fleeing from Central America’s ‘Northern Triangle” in the 1980’s –El Salvador, Guatemala, and Honduras – helped to create a perfect storm to challenge U.S. immigration enforcement.

The great percentage of these Northern Triangle immigrants were people who wanted to find a stable environment for their family; to assimilate; and to become productive members of their new community.

A small number of these individuals were survivors who had fought in civil conflicts — some of whom were naturally drawn into street gangs, including MS-13 — most of whom were unattached males with no children.

One of the tenets of this 1996 Act clarifies and codifies the role of an examining immigration officer to determine when an arriving alien is inadmissible for admission to the U.S. for having engaged in fraud or misrepresentation, or because the alien lacks valid documents.  The Act empowers the officer to order the alien removed without further hearing or review, unless the alien states a fear of persecution or an intention to apply for asylum

It further provides that an alien subject to expedited removal who states a fear of persecution or an intention to apply for asylum shall be referred for interview by an asylum officer, and if that officer finds that the alien has a credible fear of persecution, the alien shall be detained for further consideration of the application for asylum under normal non-expedited removal proceedings.

When the asylum officer determines that the alien does not have a credible fear of persecution, the asylum officer will order the alien removed from the United States.

The alien may then request a review by an immigration judge of the asylum officer’s credible fear determination. If the immigration judge also finds that the alien does not have a credible fear of persecution, the alien will be removed from the United States pursuant to the asylum officer’s order.

What is missing from the Act is a clear prohibition of separating immigrant children from their parents.

Why is that prohibition missing from the Act?

One has to conclude that no one in 1996 – not even Newt Gingrich – could have imagined that any official in the United States would consider this approach to be a viable solution.

True, Bill Clinton signed the law which made some major strides forward in our responsible and rational enforcement of U.S. immigration policy.

Yet, there is nothing — NOTHING — in this — or any law — which encourages separation of children from their parents.