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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