There are approximately a half million words in the Immigration and Nationality Act (INA), and about another half million in the INA’s implementing regulations at 8 C.F.R. § 1.1, et seq., most of which I am familiar with, and some I can quote verbatim. Many if not most are dead letters, however, and the ones that are ignored usually depend on the administration in power. Perhaps it’s time to talk about the immigration paradox that dare not speak its name.
A Quick Historical Perspective
The INA has existed in roughly its current form since 1952, when Congress consolidated various statutes into what is now Title 8 of the U.S. Code.
Legal immigration provisions in the 1952 INA, however, received a major overhaul 13 years later in the “Hart-Celler Act”.
That act, formally the “Immigration and Nationality Act of 1965”, did away with the old “national origins system”, which had “set ethnoracial quotas that largely banned immigration from East, Central, and Southern Europe, and all of Asia and Africa”, although Hart-Celler also “imposed first-ever numerical limits on immigration from Latin America”.
Most critically, however, the ’65 Act shifted a legal immigration framework that had been balanced between employment-based and family-based immigrants to one that primarily focused on “family reunification” — and (likely deliberately) “vastly underestimated the number of immigrants who would take advantage of the family reunification clause”.
In FY 1964, the year before Hart-Celler, there were 300,000 new “lawful permanent residents” (LPRs), that is, “green card holders”. By FY 1967, that figure jumped to more than 450,000, and by FY 1981, it neared 600,000. The authors of that law almost definitely saw that increase coming — but had little reason to share that inconvenient truth with their constituents.
Then as the Carter administration was slouching toward a close, Congress passed the “Refugee Act of 1980”, which implemented international humanitarian agreements and — most critically — created a mechanism in section 208 of the INA that allowed aliens in the United States to apply for asylum.
Ten years later, in FY 1990, a total of 8,472 aliens were granted asylum, a figure that exceeded 39,000 by the Refugee Act’s 21st birthday in FY 2001.
More importantly, however, the number of pending asylum applications (both “affirmative” ones filed with USCIS and “defensive” ones filed in immigration court) ballooned from fewer than 25,000 in FY 2005 to nearly 910,000 in FY 2025, as aliens realized filing an application allowed them to live and work here indefinitely regardless of whether they ever received protection.
IIRIRA
The most significant enforcement amendments to the INA, however, were in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), after Congress realized how egregiously aliens were abusing the “relief” it had offered them in the INA — and how rarely various administrations and immigration courts were sticking to the restrictions therein.
Open-ended “suspension of deportation” under then-section 244 of the INA, commonly referred to as “seven-year amnesty” to reflect the period a deportable alien had to be present to receive a green card thereunder and how easy it was to receive, was replaced by more limited “cancellation of removal and adjustment of status for certain nonpermanent residents” (better known as “42B cancellation” after the application form) under section 240A(b) of the INA, with a hard 4,000 grant-per-annum cap.
“Section 212(c)” waivers, which had essentially excused the criminal activity of even the most brazen LPRs, were scrapped and replaced by a more restrictive relief called “cancellation of removal for certain permanent residents” (“42A cancellation”, see above) in section 240A(a) of the INA.
And to reverse incentives aliens exploited in coming here illegally knowing they’d be released with work authorization after applying for asylum (which could take years), Congress amended section 235(b)(1) of the INA to create “expedited removal”, under which asylum officers were to screen protection claims at the borders and ports before allowing illegal entrants to see an immigration judge (and excluded the ones who didn’t pass the test).
Moreover, that provision and section 235(b)(2)(A) of the INA mandated the detention of all aliens who had not been formally admitted to the United States — not simply the ones caught while coming in, as had been true prior to amendment — throughout the screening and immigration court processes, up to the point they were either granted relief or deported.
Finally, and as my colleague George Fishman has explained at length, IIRIRA tightened the restrictions on “parole”, a limited authority Congress granted the executive branch in section 212(d)(5)(A) of the INA to allow inadmissible aliens to enter the United States without being admitted, which had been serially abused by nearly every administration (including by President Clinton, who signed the bill).
The Epoch of Nonenforcement
IIRIRA was wildly popular at the time — and bipartisan, passing the House on a vote of 370 to 37 and the Senate 84 to 15. But its passage triggered a “Fix ‘96” movement of advocates united with the ostensible goal of “restor[ing] a common-sense balance to the nation’s immigration policy”.
And while President Clinton in his IIRIRA signing statement lauded the bill for “cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system”, he also vowed to “correct provisions in this bill that are inconsistent with international principles of refugee protection”.
Not surprisingly, when Clinton’s DOJ published IIRIRA’s implementing regulations in March 1997, the detention mandates were largely neutered, with the rule bluntly stating that “aliens who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection) will be eligible for bond” — which is why Trump II, 30 years later, is in the Supreme Court defending its “mass detention” policies under section 235(b)(2)(A).
The cap on 42B grants? A veritable dead letter, given that immigration judges are allowed to “reserve” decisions granting aliens that relief, a process that allows cases to be simply rolled over until a number becomes available.
And then there’s parole, again a “limited authority” given to DHS for use in an extremely discrete class of cases, but one the Biden administration used to usher in (by my count) nearly three million illegal aliens.
IIRIRA was “fixed” alright, in much the same way a responsible pet owner “fixes” a male dog.
The Immigration Paradox
Which brings me to the “immigration paradox”: Regardless of how hard Congress tries to limit immigration to the United States, the number of foreign-born persons in the United States simply and almost inevitably climbs.
Want proof? As my colleagues Steve Camarota and Karen Ziegler have revealed, in 1970 — five years after Hart-Celler — there were 9.6 million foreign-born individuals in the United States, and they made up less than 5 percent of the U.S. population.
By 1980, when the Refugee Act was passed, the total foreign-born population had climbed to 14.1 million, and they constituted 6.2 percent of the U.S. population.
In 2000, four years after IIRIRA, there were 31.1 million foreign-born residents of the United States, and they accounted for 11.1 percent of the population.
And by the time President Biden left office in FY 2025, on the eve of the 30th anniversary of IIRIRA, 53.3 million foreign-born individuals were living here and constituted nearly 16 percent of the total U.S. population.
Again, even after Congress with broad bipartisan majorities in 1996 said “enough is enough”, little changed, and if anything (from an enforcement perspective) things only got worse.
In FY 2011, Border Patrol agents apprehended fewer than 328,000 illegal entrants at the Southwest border. Eight years later in FY 2019, apprehensions climbed to more than 859,000, and in FY 2022, they topped 2.2 million.
To be both fair and clear, there were wild gyrations in the intervening years, but who cares? Little Congress says seems to impact the flow.
The Reasons Why
The reasons why that’s true are clear when you think about them.
First, although Congress is the “first branch” in our constitutional order, the term is misleading.
Every two years, we get a new Congress, and the upcoming 120th Congress is going to look a lot different from the current 119th Congress, but then the current one bears little resemblance to the 82nd Congress that passed the 1952 INA, or the 89th Congress responsible for Hart-Celler, the 96th Congress that agreed to the Refugee Act, or the 104th Congress that coalesced around IIRIRA.
And while “Congress” writ large has had difficulty passing laws since “we the people” created it (a feature, not a bug under the Constitution), members of any given Congress have shown a preternatural ability to criticize and distance themselves from what their legislative forebears wrought.
Not only would IIRIRA be DOA in the next Congress, it likely wouldn’t receive consideration even in the current one — and forget about most of the intervening assemblies.
While, with notable exceptions, DHS under Trump II has done little in immigration enforcement that the 82nd, 89th, 96th, and 104th Congresses combined allowed it to do — and in many instances demanded of it — members on both sides of the aisle in the 119th clutched pearls when they did much of it.
And don’t be surprised if the 120th Congress attempts to starve ICE and (possibly) CBP of funding, for a simple reason: It has been well nigh impossible since 1996 to make any significant changes to the INA (though Fishman and I did make some inroads on the margins in 2001, 2002, and 2005), but government doesn’t run without money, and Congress must pass annual appropriations.
To say nothing of the other two branches of the federal government.
Migrants surged into the United States in FY 2022 because the Biden administration treated enforcement provisions of the INA as if they were written on palimpsest and could be wiped away when low-level functionaries thought them too harsh.
And the average federal district court judge knows about as much about immigration as I know about admiralty or bankruptcy law — which is to say little if anything — but that won’t stop them from quoting Gandhi in their opinions when enforcement seems a little too extreme to them.
But after something that shocks the conscience happens because the INA wasn’t enforced — a foreign threat imperils the homeland or a young woman is savagely murdered by a criminal alien who should never have been here, for instance — Congress stirs to action, if for no other reason than it must been seen to be doing something in response, only to later question it in repose.
Here’s the cycle so you can print and clip it to your computer for future reference: Congress acts and amends the INA; those amendments are either vigorously enforced or blithely ignored by the executive branch; bad things happen due either to the administration’s enforcement or neglect or because of the law itself, and Congress gets riled up; Congress acts and — with great effort — amends the INA.
Repeat, with robust interference by the courts and occasional amnesties. And that cycle is only true when the system works as the founders envisioned; in most cases, steps two and three are simply on endless repeat against a background of demagoguery.
My Advice
Here’s my advice to Congress: If you don’t like the rules in the INA that allow and/or require immigration officers to arrest, detain, and deport removable aliens, educate yourself on the INA and change the rules. Then, shut up and accept the electoral consequences, be they good or bad.