By Aarti Shahani
I ran into Hillary Clinton recently. We were both at NPR (my employer at the time), giving interviews for our new books. We crossed paths and took a selfie. I congratulated Clinton on her book, Gutsy Women. She graciously asked me about mine.
“It’s called Here We Are,” I told her. “It’s about the decade-long deportation case I fought to keep my father in this country after your husband signed those laws in 1996.” (One of my NPR colleagues remembers overhearing the exchange. Clinton’s team says she has no recollection of it.)
The United States is largely, though not entirely, a nation of immigrants. President Bill Clinton turned his back on this basic truth of American identity in the 1990s. When violent crime was at a historic high, he made the radical move of turning immigrants and immigration into problems to be solved through crime control. The two laws he signed had impressive names: the Antiterrorism and Effective Death Penalty Act, and the Illegal Immigration Reform and Immigrant Responsibility Act.
People are not typically for terrorism or against responsibility. But these titles omit the facts of what the bills did. They expanded the grounds of deportation to include not only serious crimes, but nearly any crime (including misdemeanors); stripped judges of the ability to consider life circumstances in order to grant pardons on a case-by-case basis; required that many of the immigrants facing exile for a crime be imprisoned indefinitely, beyond the period of their sentence, until that exile could take place (even though deportation is a civil, not criminal, proceeding); and subjected newcomers to fast-track deportations in which officers could expel immigrants without any hearing from a judge.
In other words, the 1996 laws took the harshest elements of the criminal-justice system—mass incarceration, discriminatory policing, zero tolerance—and injected them into the immigration system.
The 1996 laws greatly expanded the use of secret evidence in deportation. Legal residents accused of “terrorism” were deported without hearing the testimony against them, or who had offered it. Just about every case known to the public was against Arabs or Muslims.
Clinton’s bills, by building a robust pipeline for mass deportation, created the legal architecture for present-day human-rights abuses at the border. Since their passage, the budget for deportation has exploded: from $1.9 billion in 1997 ($3 billion adjusted for inflation) to $21.1 billion by 2018.
When signing the second of the 1996 laws, Clinton said, “It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system—without punishing those living in the United States legally.”
But my father was a legal resident. Like so many people seeking a home in America, Dad had a backstory. He was born in Karachi, Pakistan, and uprooted from his homeland in 1947. The British colonizers, as they were leaving the subcontinent, had a man who’d never set foot there draw lines to divide India and Pakistan. Dad became a lifelong migrant, forever picking up and starting over, fated to be irrelevant and stepped on wherever he landed. He—and later, we—were among the early victims of modern low-end globalization. Dad landed in Queens, New York, in 1981, as did Mom, my big brother and sister, and me. While we overstayed tourist visas, we were able to get green cards (my aunt and her husband, naturalized citizens, sponsored us). We became legal permanent residents. That put us on the fast track to the American dream, or so we thought.With papers, I became a precocious scholarship kid at an elite Manhattan prep school that today costs a Tesla a year.
Dad started his own business, a wholesale electronics shop on 28th Street and Broadway—the exact same block where he’d once shoveled snow for $5 an hour. He spoke six languages, including English, and could multiply large numbers in his head. He was doing so well, we made the vaunted move to suburban New Jersey and even bought a five-foot-wide TV.
Then, in 1996, Dad and his younger brother, who helped run our store, were arrested and taken to jail on Rikers Island. New York State said they had sold watches and calculators to the wrong guys—members of the notorious Cali drug cartel.They were charged with money laundering. It confused Dad. His electronics store sold to anyone who wanted to buy. “I’m just doing what everyone is doing,” he kept saying.
The defense lawyers we hired told my dad and uncle to take a plea bargain. They could each serve eight months and put the matter behind them, or they could go to trial and face the “trial penalty”—in which case, if convicted, they could serve more than a decade. They did what just about every defendant does: took the plea. Only, the eight months spiraled into a 14-year legal battle because of the 1996 laws. Deportation officers came for my dad and uncle after they were done serving their time, to dole out a second, surprise punishment: life exile. Clinton’s bills set out to strip them of their legal status after they had already served sentences for nonviolent, low-level offenses.
Both men were charged as “aggravated felons”—a term Clinton’s laws redefined to include people who had committed just about any criminal offense, including some misdemeanors. It didn’t matter that both men were legal permanent residents with family members who were U.S. citizens.
At the end of his sentence, in 2000, my uncle was deported. The only reason Dad was not is because I stopped going to college to fight his case, stepping outside the immigration courtroom and mounting a political campaign. I corralled every supporter I could, including a Republican congressman. I was 16 when Dad was first arrested, and 30 when the battle ended. At that point, I had lived nearly half my life in the shadow of that case.Through a nonprofit I’d co-founded, Families for Freedom, I personally worked with more than a thousand people who have been deported. We managed to keep just a handful here. The deportees I know left behind American children. My family is far from alone.
Recently, many in public service have been making valiant efforts at damage control, albeit piecemeal. Benita Jain, a lawyer with the Immigrant Defense Project, a nonprofit that helped my family, attributes it to what she calls “the Trump spike.” “People were exposed to just very visceral images of deportation and kids and families being deported,” she told me. “That made them look up and take notice.”
Earlier this year in Utah, a Republican governor and legislature passed a bill to reduce the maximum sentence for a misdemeanor by one day—from 365 days to 364. The singular point of that tiny change was to exploit a legal loophole so that wide swaths of immigrant defendants could be shielded from automatic deportation for misdemeanors. (Under one of Clinton’s laws, crimes punishable by 365 days or more in prison trigger automatic deportation.) Prosecutors in New York State endorsed a similar bill, which was enacted in April. In California, Governor Gavin Newsom (like his predecessor, Jerry Brown) has granted gubernatorial pardons to so-called criminal aliens to head off deportation. They include Kang Hen, who fled to the U.S. in the 1980s as a child to escape the Cambodian genocide. At age 12, he joined a gang. By 18, he was convicted of robbery. He is a legal resident with a 4-year-old son and a partner with kidney and heart problems. He served his time. But because, under Clinton’s laws, an immigration judge does not have the authority to grant a pardon based on the family’s needs, the governor of the most populous state in the nation had to intervene. That’s hardly a scalable approach to justice.
To curtail Immigration and Customs Enforcement’s upholding of the 1996 laws, dozens of localities have restricted the agency from entering jails and tagging certain prisoners for deportation. Representative Jesús García, a Democrat from Illinois, helped kick off that national trend years ago, in 2011. He’s now working on a robust set of reforms, called “New Way Forward,” that would dismantle Clinton’s legacy. Notably, according to NPR, at least 10 of the Democratic presidential candidates have pledged to not criminally prosecute people trying to cross the border into the U.S. One of them, Senator Cory Booker, has also proposed a bill to limit deportation for many marijuana convictions (which disproportionately affect people of color). These candidates want to break away from the crime-control framework Clinton created.
One historical footnote is worth raising: In the years immediately after Clinton signed the 1996 laws, Republicans joined Democrats in speaking up against them. “There has been widespread agreement that some deportations were unfair and resulted in unjustifiable hardship,” Representative Lamar Smith, a Republican from Texas, and 27 other members of Congress wrote in a letter to Attorney General Janet Reno. Even after the September 11 attacks, when gross opportunists exploited American mourning for an anti-immigrant agenda, Representative Jim Sensenbrenner, a Republican from Wisconsin, wrote, “A disturbing number of cases have arisen in which the deportation of legal permanent resident aliens have seemed exceedingly harsh responses.”
Democrats are at a historic juncture, soul-searching and reconnecting with a neglected base. The 1996 laws have made it very difficult for rising stars to campaign with a clear conscience. The obvious response when they criticize the current president for predatory immigration enforcement is that the laws were created by Clinton, not Trump—and, by and large, that’s true. President Barack Obama was dubbed “deporter in chief” because he continued to fund the system Clinton built.
When I ran into Hillary Clinton in that atrium, I was not blaming a wife for her husband’s misdeeds. That would be wrong. I was delivering a message from my family to hers. While we’ll never forget what Bill Clinton did, we can forgive and heal.