We live at a time when television and the internet betray reality; do so called illegal aliens get their due? The answer is no; American’s do! The tender fabric that separates a Mexican National from a U.S. Citizen is skin deep. Mexico, through its own poor ethnocentric landed immigrant policies has ruined its economy. Now, its neighbor to the north is doing ditto.
Why eliminate or alter INA 212(a)(9)(B)? Simple, the definition of “extreme hardship” is too subjective and difficult to pin down with evidence. Our Government gives this dirty duty to a series of functionaries hunkered down in El Paso. These often non-attorneys are shell shocked by the innundation of form I-601 coming from the U.S. Consular Officials in Ciudad Juarez. Their insensitivity to the plight of U.S. Citizen family members is due to the law.
What are the results? Delays, some as long as a year; some indefinite! When the dust settles, U.S. Citizen spouses are often forced with a dilemma; move to Mexico or divorce. Many of the anti-immigration folks have no clue of the consequences. Certainly, more Americans have gone on food stamps simply because their Mexican husband or wife departed and lost a job. Of course, foreclosure; well, that is a foregone conclusion.
Our U.S.C.I.S. is obligated to make these disappointing decisions, however fierce, because people are upset. They are angered by images of people from the 1980s and 1990s running across the border. If those same people knew of the aggravation and havoc that they would suffer over coming decades in the U.S., then it is unclear how they would react. Why?
Well, they may have met the love of their life. They may have a job, let alone, much better paying job in the U.S. in spite of not possessing a bona fide lawful permanent resident card. Sure, there may be some whose Social Security number was invented by some cheap software program. Yes, they may wonder why they cannot do anything to ‘fix their papers,’ even though many are married to U.S. Citizens.
Why does it matter? Well, they may be married to your U. S. Citizen cousins, uncles and aunts. They may be married to your brothers and sisters. Some may have entered the U.S. at the age of one in the arms of their mothers. In fact, some may now have straight A grades, but cannot receive a scholarship or enter University. Should we punish foreign children and infants who entered with mom. They lacked the legal capacity to commit fraud? Should we continue to penalize people simply because Congress has a legal loop hole to ruin American lives?
Let me explain. In 1787, the framers of our U.S. Constitution had a dilemma. They wanted to rid the U.S. of British Spies. These spies were unknown entities. We had the equivalent of witch hunts for British Loyalists. Hysteria was at an all time high, then, when Chinese Coolies completed the railroad for Westward Expansion, and during the McCarthy Era Anti-Communist Era.
If there was equal rights in due process of law with judge and jury, then our Government would often not succeed. Evidence was often flimsy, so eliminating legal rights expedites matters. It is kind of like shooting someone and then finding out later that you were wrong. Deported Patriots never got a second chance, nor did devoted Chinese railroad workers or politically active independents. Most were labeled and deported with little consideration.
Our founding fathers created this system to quickly rid our nation of those who they thought were less than loyal. Call it a witch hunt of sorts, but the “Alienage Clause” of our U.S. Constitution has done damage to liberties that many Citizens take for granted. This Constitutional Clause gives unfettered discretion to Congress with a President’s signature to pass laws that if applied ‘directly’ to U.S. Citizens will be deemed Unconstitutional.
Over the last two decades, we have racheted up our immigration laws to deport or permanently bar some of the most minor offenses. Some offenses will never lead to a criminal conviction as a matter of discretion. Selling flour as cocaine is an aggravated felony for immigration purposes, but a Class A misdemeanor under Illinois law. Unfortunately, many rather petty, but permanent deportable criminal convictions are terminal. Even a period of probation without jail time means nothing. Yet, the law must ignore the U.S. Spouse in too many situations.
Some convictions that will even be expunged for good behavior still remain for permanent deportation. However, all convictions and minor infractions can lead to the permanent departure of the loved one of a U.S. Citizen. Our U.S. Supreme Court is relatively helpless without a Marbury v. Madison type of power move.
The challenge is that many return to the U.S. and with the onslaught of others, so these laws may deter some, but simply don’t work well. They impact on the full faith and credit of our laws. How can Americans respect a nation that incapable of enforcing its own laws? Well, perhaps, riding the red tape with repeals is in order. All the gold in Fort Knox will not stop a family from trying to re-unite. The tragedy on the Southern Front will not end until we periodically purge with legalization and focus upon the worst foreign criminal ex-convicts.
What about the lawful visa option? Well, IMMACT 90 cut the number of lawful immigrant visas by more than half. It created delays in excess of 20 years in some family categories. The child of a Mexican permanent resident can wait fifteen years before they undust the folder at the National Visa Center. This outrageous drop in family visas created havoc for our family. My sister in law, a physician, could not enter unfettered for twelve years. Many petitioners die before their loved one’s priority date is current; there are no refunds and compensation for that agony!
As an attorney, when I work with a family, it may only be one paid appointment. Families must be prepared to be physically separated from the U.S. and loved ones before they depart to a consulate. Whether it is Albania or Zimbabwe, they take a significant risk. When a person leaves the U.S. after an unlawful stay or overstay of 180 days, they trigger the unlawful presence bar in most cases.
Why not wait until the moment the case is scheduled, you say? Well, an INA 212(a)(9)(B)(v) waiver decision can take months, years, or suffer through denials. Do you really know whether your brother’s wife is legal?
Can America really afford to pretend that this law, which often bars adjustment of status, is an appropriate penalty for your U.S. Citizen brother? Would you like to repeatedly visit Budapest, when you want to see him or your mother? INA 212(a)(9)(B) should be repealed! The DREAM Act should be passed. INA 245i should be permanent. None are amnesties. Let’s stop the madness!
Kevin Dixler, Updates on Immigration and Visa Law 