Contributed by Bryon Large, Senior Attorney
It’s
a very exciting time in immigration law, watching the debate over immigration
reform heat up again. Voices from many
sides are chiming in to get their ideas on the wish list for immigration
reform.
There
appears to be enough support and desire to have a more expansive and
comprehensive reform package. Rather
than piecemeal fixes of the current framework of the law, such as the DREAM Act
or AgJOBS, both critical pieces of legislation, many immigration scholars are
anticipating a much larger reform package that would include many or most
non-criminal undocumented immigrants currently in the United States. Also expected are more expansive enforcement
tools against criminal aliens, repeat immigration violators and those
committing immigration fraud.
Most
scholars agree that the enforcement tools for unlawful presence that were found
in major overhauls like IIRAIRA in 1996 have done a lot to contribute to the
lack of documents to certain individuals.
Most people who have spent more than a year in the United States and
departed find themselves with a ten-year bar from returning to the United
States, such as when they return to their home countries for their immigrant
visas. Those that seek to reenter
unlawfully find themselves permanently barred from returning to the United
States, as well as ineligible to solicit a hardship waiver for at least ten
years. When family unity is an
immigrant’s highest priority, as is typical, such harsh and unforgiving bars
only contribute to the growing number of undocumented people.
There
are a number of quick and easy solutions that can be passed in immigration
reform. Obvious tools like the DREAM Act
will help a number of America’s youth that find themselves trapped in a country
that has little to offer them without basic documentation. But the DREAM Act will do little to stabilize
their parents’ lives, or assist in providing for their younger siblings.
A
comprehensive immigration reform should include some basic tools for the
documentation and normalization of people who have come to America and grown
roots in this country. From an
enforcement perspective, we should be preoccupied with the fingerprinting of
applicants and doing our best to remove violent and dangerous criminals, as
well as those that destabilize America’s security situation, such as
terrorists, drug traffickers, violent gang members, and arms traffickers.
Easy
fixes to add to the immigration wish list might be:
·
Elimination of the ten-year bar. This is one of the greatest obstacles of our
current immigration system. Although the
new provisional waiver or stateside waiver process will alleviate the extended
periods of processing outside of the United States, as well as the costly
waiver process and requirement to demonstrate that an immigrant’s citizen or
resident spouse or children would suffer an “extreme hardship” if the waiver
were not granted. Note that the waiver
does not look to the immigrant’s children born in the United States.
·
Elimination or reform of the Permanent Bar. It’s been called the death penalty for
jaywalking. Perhaps it’s more complex
than that, but typically the second unlawful entry to the United States since
the implementation of IIRAIRA would create a permanent bar to admissibility in
the United States. Otherwise stated, a
person who makes a second unlawful entry to the U.S. following one year of
unlawful presence is no longer eligible for an immigrant visa (green
card). Even harsher, that immigrant must
spend at least ten years outside of the United States before even requesting a
hardship waiver. There is no doubt that
repeat immigration violators are held to a higher standard. Many would argue that this is rightfully so. But regardless of the views on this, we must
also look to how difficult laws such as IIRAIRA have contributed to the
undocumented problem we now have. Long
gone are the days where someone could get a green card by simply marrying a
United States citizen.
·
Assistance for Same-Sex Couples. Many immigration scholars are sitting on the
edge of their seats waiting for the Supreme Court to rule on Section 3 of the
Defense of Marriage Act (DOMA). Section
3 states that the federal government will only recognize a marriage between one
man and one woman. For immigration
purposes, those couples married in jurisdictions that permit same-sex marriage
cannot apply for the same immigrant benefits that their opposite-sex
counterparts more easily qualify for.
Passage of a law similar to the Uniting American Families Act (UAFA)
would eliminate the discrimination of our marriage-based family immigration
system and open the channels of immigration to couples in long-term permanent
relationships. An interesting side
note: Our non-immigrant visa system
already gives recognition to permanent partners traveling to the United States
on valid employment visas in many cases.
·
Moving the Registry Date. Registry is a benefit that has appeared
extensively throughout the history of immigration and nationality law in the
United States since 1929. It is based on
the idea that someone who has lived in the United States for a specific period
of time should have the opportunity to apply for a green card. Historically, the registry date was updated
with immigration and naturalization reforms, and tended to be ten to twenty
years behind the current date. For
example, when IRCA passed in 1986, Congress saw fit to update the registry date
to January 1, 1972, some 14 years prior to IRCA. Essentially, anyone that could demonstrate
they have been present since that date can apply for permanent residency in the
United States. Unfortunately, Congress
has not saw fit to update this date since the passage of IRCA in 1986. It is highly unusual for our registry date to
be 41 years behind the current date.
Updating the registry date to a more reasonable timeframe would do
wonders to further the stability of those present in the United States for and
extended period of time.
·
Waiving “Deal-breakers.” There are a number of deal-breakers in
immigration law today, particularly attributable to IIRAIRA. While they seemed like an excellent idea to
curb illegal immigration at the time, they have only served to trap people in
the United States without immigration documents, leading to restrictions on
driving and other identity-type issues.
Nobody would argue that making a false claim to United States
citizenship for the purposes of gaining an immigration benefit should be
considered a “no-no.” However, IIRAIRA
assures that anyone who falsely says they are a United States citizen is no
longer eligible for any immigration benefit.
There is no waiver for this false statement. Making a false claim to citizenship, for
example, when filling out paperwork on the first day of a new job, would render
an immigrant forever ineligible for a green card, without exception and without
a manner to seek forgiveness. Placing a
statute of limitations on the false claim, or providing a waiver for hardship
or family unity purposes would alleviate this unforgiving restriction.
And,
naturally, many scholars expect to see some serious tightening of immigration
laws, expanding deportable offenses, and making it more difficult for some
people to immigrate to the United States.
Many of us expect to see some of the following:
·
Stricter Standards for Waivers. While waivers can
oftentimes seem difficult enough to achieve at their already high standards,
many immigration practitioners expect the hardship requirements for many
waivers to increase. Many practitioners
also expect to see waivers required more often and for more issues than we
currently see.
·
Less Judicial Review. The United States Constitution permits the
Congress to strip the federal courts of jurisdiction to review nearly any type
of review of an agency’s actions. In the
immigration context, IIRAIRA and various other laws have limited the federal
judiciary’s ability to review immigration decisions made by the Department of
Homeland Security or the Department of Justice.
Many practitioners wholeheartedly expect to see more limits on federal
judges’ authority to review immigration decisions. Ironically, such action is a surprising
limitation on a free and independent judiciary that upholds and guarantees the
similar types of freedoms many immigrants arriving on our shores seek.
·
Tighter Enforcement for Criminal Aliens. Most practitioners agree that expanded
definitions for deportable criminal acts will be a part of any immigration
reform. Currently, aggravated felons are
deportable without exception and without waiver, regardless of how much time
they have spent in the United States and without consideration of family ties
and the hardships that family might suffer should they be deported. We expect the list of aggravated felonies to
be expanded to include more types of crimes.
For example, in the last reauthorization attempt of the Violence Against
Women Act (VAWA), there was a provision making three DUI’s equal an aggravated
felony, and that provision was set to be retroactive. We expect to see very similar language in any
immigration reform.
Clearly,
it’s not only the undocumented youth that are DREAMing. There are millions of people that need a path
to stability and, eventually, residency.
And those advocating for stronger immigration enforcement also have
their wish lists, as well. It’s an
exciting time to be watching immigration law.
As this all unfolds in the coming months, it will be exciting to watch
what fate holds for the millions of undocumented immigrants in the United
States.
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