In the days since President Obama’s re-election victory, Republican leaders have been aggressively and publicly rethinking their party’s uncompromising stance on reforming current immigration law. Suddenly, prominent new voices — Florida Sen. Marco Rubio among them — are calling for a different approach, arguing that the GOP’s awkward relationship with the growing Latino electorate depends on addressing this issue. There’s a lot on the table.
The big question for the GOP is whether to sign on to a bipartisan agreement allowing some of the millions of undocumented people in the country to earn legal status. But the president and Congress could also face pressure to look at penalties now enshrined in immigration law — the product of 1996 legislation – that impose harsh punishments on illegal immigrants who apply for legal status based on marriage to a U.S. citizen or some other tie.
Immigration activists blame these penalties for keeping hundreds of thousands of illegal immigrants in hiding. Because of mandatory penalties, citizens or legal immigrants who have who tried to legalize their undocumented spouses have seen them banned from the U.S. for 10 years, 20 years, even life, as the Center for Public Integrity recently reported, below:
In a nation built by immigrants, they thought they could pursue their American Dream — with loved ones at their side. Instead, they're living an American nightmare that's tearing families apart and forcing Americans into exile.
Chris Xitco, a native of Los Angeles, never imagined that after marrying his wife Delia in 2002 and trying to legalize her, she'd end up barred by U.S. officials for life, with no pardon even possible for 10 years. She now lives south of Tijuana, Mexico, alone with the couple’s two small children.
T.J. Barbour, a native of San Diego, has been struggling every day to care for a 10-year-old son, since his wife Maythe was deported and then barred from the United States in 2011 for what could be 20 years.
In central North Carolina, Anita Mann Perez has been financially ruined trying to raise three small children since her husband Jorge was exiled for 10 years in 2007. Now she's moved to Mexico to join him.
Across the country, as illegal immigrants have settled into communities, they have met Americans, fallen in love, married and had children. But when Americans have voluntarily stepped up to sponsor their spouses for legal residency, believing this was the right thing to do, they’ve been shocked to discover their citizenship does not trump mandatory penalties the spouses must face. Far from it.
These penalties, which “bar” the spouses from the U.S. for years at a time, were instituted by Congress in 1996 specifically to punish immigration-related offenses.
Since then, the law governing such situations — and the way it’s applied —has taken a number of twists and turns. Over that time period, waivers have helped many people. And in January, President Obama announced a plan to tweak the procedure by which citizens’ spouses apply for residency, a change that could eventually spare many more families from long, painful separations. But the change isn’t likely to go into effect this year, and it isn’t retroactive. And while thousands stand to benefit, thousands of others simply won’t qualify for easier access to “hardship waivers” that the president proposes — and will be trapped by the small print of the 1996 law. (SEE SIDEBAR)
Under that law, if applicants for legal residency crossed the border once, and were “unlawfully present” for more than one year, they must be issued a 10-year bar from living in the United States. They can then apply for a hardship waiver to try to return sooner and take up legal residency. If applicants have a history of entering the United States multiple times illegally, they can be barred for life — and can only pursue pardons if they remain outside the United States for five, usually 10, sometimes 20 years. Being married to an American citizen may not help at all.
To complete their application process, people who entered the United States illegally must go to their final interview at a U.S. consulate back in their home countries. Often U.S. consular officials must simply deliver the bad news immediately. And that’s that. The bar has begun, and the applicant cannot return.
Oklahoma lawyer Douglas Stump, president-elect of the American Immigration Lawyers Association, said for every 100 people who approach him to try to legalize a family member, more than half involve undocumented people whose immigration violations would qualify them for the hefty penalties mandated by the 1996 law.
The penalties emerged from Republican leaders in a get-tough Congress. They argued the country had become too easy on illegal immigrants by allowing some with family ties to pay fees, show they had no disqualifying police record and adjust their status without having to leave the country. Congress increased from $650 to $1,000 the fine such immigrants would have to pay. But that wasn’t enough, some members said. Such immigrants should also leave to receive the new bars on re-entering for a certain period.
By getting tougher on these undocumented people, supporters of bars reasoned, others would see that it would never be easy for them to transition from illegal to legal status, even by marriage.
Rep. Dana Rohrabacher, a Republican of Orange County, California, defended the tougher rules during a 2001 congressional debate over their merits — and whether to extend a pre-1996 statute that was allowing some immigrants to still adjust their status inside the U.S.
“Yes, there are some heart-tearing cases here,” Rohrabacher said. “Yes, some people who are in this country end up marrying American citizens, and the American citizens find that their loved one is going to have to go back to their home country [for the duration of a bar] in order to be here legally, because they have married an illegal alien.”
“I am sorry,” he said. “If someone is here illegally … then they should go back to their home country to regularize their status.”
Hard numbers are impossible to come by, but the Department of State’s records of immigrant visa rejections suggest that thousands of bars have been handed down over the last decade.
Records don’t single out which of these applicants are spouses of U.S. citizens. Some could be other sorts of relatives. Typically, though, department officials say that spouses are one of the largest groups applying for residency visas globally.
Between 2000 and 2011, visa applicants were able to overcome their disqualification due to illegal presence for more than one year — which carries a 10-year bar — about 89,000 times. However, immigrant visas were denied more than 68,000 times because applicants were unable to get their disqualification for illegal presence waived. The numbers could reflect some volume of repeat attempts by the same people.
During the same period, there were almost 19,000 disqualifications of visa applications for the offense of being “unlawfully present after previous immigration violations.” Only five such cases were reversed. The penalty is a lifetime bar, with the possibility of being able to seek a pardon, but, ordinarily, only after 10 years.
There have been thousands of visa rejections for other immigration-related offenses, including “misrepresentation” of facts during the application process.
It’s also hard to know how many spouses of Americans and parents of American children could feel threatened by potential bars, and have thus decided to continue to remain undocumented. That means families are living with the risk of spouses being discovered and deported rather than trying to apply for residency.
The Pew Hispanic Center, a nonpartisan research center in Washington, D.C., estimated last year that more than 16 million people in the United States are in families with at least one undocumented member.
About 9 million of these people are in families that also include at least one U.S. citizen child. Other adults in the families could be citizens, or they could be legal immigrants. Most illegal immigrants, Pew also estimates, have been in the United States for 10 years or more — long enough to start a family.
“We are talking mostly about younger families with small children,” said Randall Emery, one of the founders of American Families United, a national network of citizens whose loved ones have been barred — or would be.
Emery’s group applauded Obama’s easing of the hardship waiver rules (see "A dizzying series of legal twists and turns"), which could benefit some of its members. Eventually. But the proposed change is not bringing any relief to Americans who are already separated from husbands, wives and children.