August 15, 2003

Time for a New Law

For too many clients, there’s too little hope for legal status

by Jose Pertierra

I am an immigration lawyer and an immigrant. More than 40 years ago, when my family and I came to the United States, the law welcomed us with open arms. Now immigrants face legal obstacles everywhere. Almost 20 years ago, when I first began practicing immigration law, legal options for clients abounded. But now it’s harder than ever to legalize them.

Part of this difficulty is due to how Sept. 11, 2001, has famously changed the legal landscape for immigrants. Young men in the United States who come from mostly Muslim countries must register with the government, and any applications for immigration benefits are carefully scrutinized. While the problems of immigrants caught up in the wake of Sept. 11 have received much publicity, all immigrants now face significant obstacles in their quests to come and to stay in the United States legally. A “culture of no” permeates the Department of Homeland Security.

TIGHTENING THE SCREWS

And even this is just a tightening of the immigration screws that began before Sept. 11. In 1996, Congress enacted the most sweeping immigration changes in the law in the last 44 years, ushering in a restrictionist regime and reversing pro-immigrant laws that stood for decades. The country’s acceptance of immigration from the time when my family came here has now shifted to something much harsher.

When the laws become strict and complex, lawyers have plenty of business. The more people that the DHS puts in removal proceedings, the more work there is for lawyers. Yet there is also another reality. The new, more restrictive, immigration laws create an endless parade of clients for whom very little can be done. My clients come from all over the world, but the vast majority of them come from Latin America.

By the time they come to my office, most of them are already in illegal status. They either overstayed their tourist or student visas, or they came in across the border without papers. They come seeking a “permiso” [i.e., a work permit] or a “green card” [an alien registration card that is no longer green, but pink]. Most of them have either a close family member who is already a permanent resident or U.S. citizen, or they have an employer who is willing to sponsor them for legal residency. Although the law allows U.S. citizens and permanent residents to petition close family members and employers to sponsor their employees, I can’t help many of my clients.

Why? The Illegal Immigration Reform and Responsibility Act of 1996 created three-year, 10-year, and permanent bars on admission to the United States for persons who violate immigration laws and later leave the country. The key that triggers the bars is the departure from the United States after a period of unauthorized stay.

The three-year bar applies to persons who have been present in the United States without authorization for longer than 180 days and who depart the country. The 10-year bar applies to those who have been present in the country without authorization for longer than a year and who depart afterward. The permanent bar applies to those who have been here illegally for longer than a year, depart, and then return illegally. It also applies to those who are deported and return without authorization.

The three and 10-year bars were neutralized for years by a decidedly pro-immigration statute called Section 245[i] of the Immigration and Nationality Act. It permitted qualified applicants who were sponsored by their close family members or their employers to apply for their green cards in the United States, rather than in their home countries. However, Congress permitted Section 245[i] to sunset in the spring of 2001, plunging the hopes of undocumented workers into darkness. Without Section 245[i], beneficiaries of approved visa petitions who are in the United States in violation of their immigration status cannot adjust their status and must pursue their legal residency at a U.S. Consulate abroad, where they may be denied admission for up to 10 years.

The day I wrote this column, the permanent bar reared its ugly head in my office. A family came for a consultation. Rigoberto is an undocumented worker from Mexico. He has lived in the United States for six years. His wife is a U.S. citizen. They have three children who are U.S. citizens. He is the sole support for the family as a specialty cook in a well-known restaurant in town.

TWO BURIALS

The U.S. citizen wife and the U.S. citizen employer want to sponsor him for legal residency. Neither can. Last year, Rigoberto returned to Mexico to bury his mother. He spent three weeks in Jalisco and then returned to the United States illegally. Because he left the United States and returned illegally after being in this country for more than a year without permission, he is forever barred from legal residency in the United States.

When Rigoberto returned to Mexico to bury his mother, he also buried his chances of legalizing his status in the United States.

Yet despite the bleak prospects of ever becoming a legal resident, Rigoberto will not return to Mexico. He will continue to live and work here illegally, until either the law changes or he is arrested and removed from the United States.

The stated goal of our draconian laws is to stem illegal immigration. Yet neither the bars nor the end of Section 245[i] will stop or even slow the traffic. Estimates are that there are almost 11 million undocumented immigrants in the United States. The engine that drives them to come and to stay in the United States despite harsh immigration laws is fueled by family and jobs. Their families are here, and even low-paying jobs in the United States are better than most jobs in Latin America. One purpose driving U.S. immigration laws is family reunification. Yet legal immigration is now not a realistic option for legal residents with family members abroad. It takes too long. Spouses and children of lawful permanent residents face a delay of seven to eight years under present immigrant visa quota restrictions.

Due to the large number of applicants from there, people from Mexico wait even longer. In Spanish, we have a saying: “Amor de lejos es de pendejos” — “Long-distance love is for fools.” Is it any wonder that spouses resort to illegally crossing our dangerous border with Mexico in order to join their loved ones in the United States?

It also takes many years for U.S. employers to obtain immigrant visas for nonprofessional foreign workers. Staying here illegally, however, is no picnic. After Sept. 11, Congress moved the Immigration and Naturalization Service from a department called Justice to one called Homeland Security. The name alone tells you what the priorities are these days. In some states, the police are empowered to enforce immigration laws during routine traffic stops. Driver’s licenses are impossible to obtain for undocumented workers, and therefore car insurance is improbable. Without papers, undocumented workers are prey to unscrupulous employers who exploit and underpay them, and to “immigration consultants” who promise them a green card and a parade on Broadway in exchange for thousands of their hard-earned dollars.

The undocumented live in constant fear of sudden removal from the United States. They come to my office in search of legal status, and they leave with an understanding that present immigration laws don’t provide them with a legal option. Instead, I try to give them a political option that will reverse the restrictionist cycle in favor of more-liberal immigration policies.

A POLITICAL SOLUTION?

Rigoberto can’t vote, but his U.S. citizen wife does. Maybe Rigoberto can’t persuade Congress to rectify the unjust laws of recent years, but an angry U.S. citizen wife may have better luck. The owner of the restaurant where Rigoberto works is also angry. He can’t find a specialty cook who is as skilled as Rigoberto, yet he can’t sponsor or even legally employ him. The restaurant owner also votes. Many of his customers are politicians and businessmen with clout.

Although they may not know it when they first come to see me, undocumented workers also have political power. They do essential work. They pay taxes. They have employers and family members who are U.S. citizens. Part of my job is to politicize them, their families, their employers, and their friends. School taught me to interpret the statutes in various ways to serve my clients. Practice teaches me that, to better serve them, lawyers also need to strive to change the law.

Jose Pertierra practices immigration law in Washington, D.C. His Web site is www.lawyers.com/pertierra. Reprinted from “The Legal Times” July 28, 2003.

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