The time is now!" as President Obama recently announced in his famous immigration speech at Del Sol High School in Las Vegas. Indeed, he uttered this phrase numerous times during his presentation to an impassioned and eager crowd. His point: "the time is now" for comprehensive immigration reform.
In his speech, the president proposed a plan for undocumented immigrants to earn citizenship. It is a procedure that will encourage them to come out of the shadows. According to the president, immigrants living here illegally must be held responsible for their actions by passing national security background checks, paying taxes and learning English before they can earn their citizenship.
The so-called "undocumented" are comprised of aliens residing illegally in the United States. In most instances, they have either entered the United States without inspection (EWI) or entered legally but violated the terms of their visas by remaining beyond their authorized period of stay or by engaging in unauthorized employment.
Before analyzing the importance of the "comprehensive" aspect of the president’s proposal, and in order to explain to those who oppose this reform on political grounds because it provides a path to citizenship (and voting), it is important to stress that no law enacted under the Immigration and Nationality Act (INA) has ever provided automatic citizenship to aliens residing unlawfully in the United States.
As an immigration attorney, I understand the president’s proposal to mean that undocumented aliens must first comply with all of the requirements outlined in his Las Vegas speech prior to obtaining lawful permanent resident ("green card") status in the United States. Thereafter, the immigrant would have to comply with all the current administrative requirements before becoming eligible to be a naturalized American citizen.
The central point of the president’s comprehensive proposal rests in his philosophy of "earned citizenship." His plan would allow an estimated 11 million (and possibly many more) people who have broken the rules by being in our country illegally to have a second chance. As the president reasoned, the vast majority of these people aren’t looking for trouble. They’re just like you and me. They work hard. They love their families and their adopted country. Regardless of what nation they have come from and what language they speak, they have all heard the famous call of the haunting words of Emma Lazarus, engraved upon the pedestal of the Statute of Liberty:
[...] Give me your tired, your poor,
Your huddled masses yearning to breathe free.
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!
Almost everyone reading this article is a descendant of an immigrant. In his speech, the president stressed that it’s important for us to remember our history. "Unless you’re one of the first Americans, a Native American, you came from someplace else. Somebody brought you [here]."
Now, what did the president mean when he stated in his Las Vegas speech that our immigration system is out of date and badly broken? What lies at the heart of his urgent call for comprehensive immigration reform?
Since the last immigration amnesty law issued during the Reagan administration in 1986, Congress has enacted 143 new statutes amending the Immigration and Naturalization Act (INA). Among the more popular and well-known of these are:
• The Nicaraguan and Central American Relief Act (NACARA), which provided immigration benefits and relief from deportation to certain Nicaraguans, Salvadorans, Guatemalans, Cubans and nationals of the former Soviet bloc countries who arrived in the United States for the purpose of seeking political asylum;
• The Legal Immigration and Family Equity Act (LIFE) of 2000, which was intended to accelerate the immigration process for certain families and make it easier to obtain work visas;
• The Violence Against Women Act (VAWA), which created a route to obtain immigration status for certain battered spouses and children of U.S. citizens and lawful permanent residents; and, most recently,
• Deferred Action for Childhood Arrivals (DACA), which grants a deferral on removal actions and provides employment authorization to certain illegal immigrant children.
While it is true that all of the above listed acts have benefited a number of select, undocumented immigrants, these new laws have been narrowly tailored by Congress to affect only a small percentage of the 11 million people that the president wishes to bring out of hiding. The requirements of each act are like complex algorithms. All too often, an undocumented person will fail in his efforts by meeting most, but not all, of the administrative grounds for relief. Moreover, these requirements are often utterly arbitrary and offer no rhyme or reason as to their purpose.
The political reality behind immigration law often results in statutory enactments that are intended to protect certain discreet, favored groups, but not others. For example, an undocumented person from Honduras may qualify for Temporary Protected Status (TPS). However, an undocumented person from any country that’s two miles outside of the Honduran border is not eligible for this kind of protection. Under VAWA, an undocumented person may receive protection if he or she is the battered child or spouse of a United States citizen. But, if the victim is a battered fiancé, he or she must either flee the country or continue to endure the abuse while remaining illegally in the United States. Finally, a person who was brought here as a child before June 15, 2007, may qualify for DACA. Children who arrive after that date have no recourse under the act.
Too many times I’ve had to suffer through a client consultation. It’s painful to watch a totally "Americanized" child sitting across my desk cry frantically when I explain that the law protects his older brother but not him. He cries out of bitter confusion and disbelief. "You mean to tell me I don’t qualify because my parents brought me here in December of 2007?" Logically, what difference should a few months make? I hear stories like this on a daily basis. Hardworking, honest and humble people come to my office every day to see if there’s an immigration pigeonhole into which their case will fit.
As an additional complication, following the enactment of the Illegal Immigration and Immigrant Responsibility Act in 1996 (IRAIRA), immigration controls were severely increased. The act introduced the concept of unlawful presence in the United Statesand established a variety of automatic bars (coupled with lengthy federal imprisonment) for removed persons from returning to the U.S. For example, if a person is unlawfully present in the United States for over 180 days, a three-year bar is triggered. If the same person is unlawfully in our country for over 365 days, a 10-year bar is triggered. As is the case today, partisan politics were the driving factor behind the act in 1996. IRAIRA was intended by the majority political party in the Congress of that era to tremendously narrow options for relief. For example, a lawful permanent resident (LPR) who has been convicted of certain select crimes under either state or federal law is removable from the country. See INA Sec. 212. [8 U.S.C. 1182].In addition,a tourist who overstays his visit by one day will find that his visa has become void. See INA Sec. 222 G.
Given the harsh realities of the current statutory framework, my undocumented clients generally fit into one of four categories:
They qualify for relief under the law and we can process their paperwork.
They do not qualify for relief and must indefinitely continue to live in the shadows.
They meet most but not all of the requirements.
They meet all the requirements but don’t have the requisite documentary proof and thus must return to live in hiding.
The frustration level for the clients associated with this last category is intense. What do I mean that they do not have the documentary proof? By way of example, a teenage client may qualify for DACA, but doesn’t have any satisfactory proof that he entered the United States before June 15, 2007. He has no medical records, cellphone bills, a property lease, income tax statements or bank accounts. In short, he has nothing to prove that he has quietly lived as a typical American teenager in the United States for many years.
In closing, I’ll share with you the common, boilerplate sentiment our federal government sends to thousands of applicants on a daily basis denying their immigration applications:
Your application is denied. We are not telling you and your family member (a U.S. citizen or lawful permanent resident) that you cannot live together. We are just telling you that you cannot live together in the United States.
When will our government be able to send a meaningful message to the undocumented people living in this country who yearn to breathe free? The time is now. •