President Obama has stated that Comprehensive Immigration Reform will be a top priority in 2013, and it appears that Congress is ready to join the President in his efforts. Of course, it is difficult to predict the type of reform that will be passed and the extent to which that reform will affect the daily lives of our immigrant population, specifically our undocumented population.
Unfortunately, it is likely that the impending reform will not be as far-reaching as many would prefer. To that end, we at Robbins Law have been working to create practical, simple, and workable reform that will have a positive and noticeable impact if implemented.
Each week we join Junta Comunitaria Para Una Reforma Migratoria in a letter writing campaign to introduce our ideas to those Congressional Representatives we feel can affect positive change in Washington as it relates to Immigration reform. The following series of blog posts will highlight some of the simple changes that we believe can make a real difference in the lives of undocumented immigrants living in the United States. We begin with 212(a)(9)(C).
212(a)(9)(C) is part of the law that punishes immigrants who are unlawfully present in the United States after previous immigration violations. In general, the statue punishes any immigrant who has been unlawfully present in the United States for an aggregate period of more than 1 year who leaves and then attempts to reenter the United States without inspection or admission.
The 10-year bar applies to all immigrants; even children and those who would otherwise be eligible to adjust their status based on available petitions from qualifying relatives living in the United States. Those who have multiple unlawful entries into the United States will mostly likely be told they must spend 10 years outside the United States before qualifying for any kind of visa, no matter what kind of positive factors weigh in their favor. Consider the following hypothetical:
- Juan entered the United States unlawfully in 1995 as a child. In 2013 Juan marries a U.S. Citizen bride and hopes to become a Lawful Permanent Resident (LPR). Because Juan entered unlawfully and has remained in the United States without status, he is subject to a 10-year bar from reentering the United States. However, because he did not depart and reenter the U.S. since his initial entry, Juan may qualify for a waiver that allows him to overcome this 10-year penalty. He will be able to obtain residency and stay with his family in the United States.
- Now, imagine that when Juan was a child, his parents brought him back to Mexico for his grandmother’s birthday, where they remained for one week before returning to the United States. In this case, when Juan’s U.S. Citizen bride petitions for his residency, he will be told that he must return to Mexico and wait 10 years before returning because he has two unlawful entries instead of one.
This kind of penalty is harsh and unforgiving. It does not consider an immigrant’s motivation for leaving and reentering, nor does it weigh positive equities against the negative in determining one’s fate. Every week we meet people who would qualify in every way for a visa if not for a brief trip abroad to visit family or to attend to an emergency.
212(a)(9)(C) was designed as a deterrent to discourage multiple reentries. However, because its existence is relatively unknown among those it seeks to deter, it does not serve that designed purpose. It does however keep those who are aware of its existence from returning to see their families for fear of sacrificing the availability of papers in the future.
212(a)(9)(C) does not accomplish its stated purpose. Rather, it imposes harsh and unnecessary punishments with inhumane consequences. Simple revisions, such as a minor child exemption and a hardship waiver with a fine for reentry, would have a profoundly positive impact on the lives of certain immigrants who seek to live with their families in the United States.