Nation of Immigrators
Many dysfunctions within the immigration ecospace are disturbing, but some make my blood boil. The conniption that brought me to this Howard Beale moment erupted after I belatedly read a Forbes online article, published last April, by Osha Gray Davis ("A Death in Juarez: How U.S. Immigration Policy Is Tearing American Families Apart"). The Forbes piece reported on two people murdered in the Mexican border town of Ciudad Juarez and countless others living there in fear (just across from El Paso, ironically, one of America's safest cities) while waiting for the completion of snails-pace immigrant visa procedures at the U.S. consulate.
Sadly, Americans by now may be inured to the everyday nature of the drug cartels' killing fields in Mexico, particularly in Juarez. Last year, 15,000 people were slaughtered in Mexico -- the direct or collateral damage from the drug wars. Juarez, with over 3,000 killings a year, has earned a macabre distinction as Mexico's Murder Capital. Just this month, two U.S. citizens, a mother and son from Kansas, died there when assault-rifle fire sprayed their SUV.
The situation has become so dire that even the Department of Homeland Security recognizes the importance of returning deportees to the interior of Mexico, far from Juarez, in order to "safeguard" the "the health, dignity, and well-being of undocumented migrants during the repatriation process."
DHS solicitude for the safety of the deported is commendable. But why does it not also extend to more deserving Mexican citizens who, as the parents and spouses of U.S. citizens, may be eligible to receive green cards? Why is it official U.S. policy that these immigrant visa applicants are permitted to appear for their mandatory visa interview only at the U.S. consulate in this city of blood lust?
The problem is not a small one. The consulate in Juarez is "the largest issuer of [U.S.] immigrant visas in the world," according to the U.S. Government Accountability Office. Neither is the waiting time trivial. The U.S. Citizenship and Immigration Services Ombudsman reports that half of the Mexican citizens seeking U.S. immigrant visas who require a waiver of inadmissibility, usually on a showing of extreme hardship to a U.S. citizen spouse or parent, must wait up to 12 months for a decision in their case. Since a wait of even one day in Juarez may make the applicant a sitting duck for cartel violence, a year-long wait is simply unconscionable. Worse yet, as explained below, if a waiver application is denied, the family separation may be for ten years or more.
This deadly form of Juarez red rover arises primarily from a failed experiment in 1996 at the instigation of Representative Lamar Smith -- now Chairman of the House Judiciary Committee -- who championed the "unlawful presence" bar to reentry that became part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). The bar in most cases involves a decade-long ban on readmission to the U.S. (unless an extreme-hardship waiver is granted) for persons who entered illegally or overstayed the time period granted by the government. The ten-year bar (like IIRAIRA's three-year and permanent authorized) is triggered only after the overstayer or EWI (one who "enters without inspection") has left the United States. Thus, what might otherwise be a one- or two-day game of consular Russian Roulette in Juarez (as immigrant visa and waiver processing are completed) becomes a one- or ten-year-long exposure to cartel carnage for the 50% of extreme-hardship waiver applicants who are not granted expedited review or are denied a waiver.
As a 2011 law review article ("The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad") argues persuasively, the "choice" facing U.S.-citizen spouses, parents and children of either separation from a loved one for up to ten years (if the waiver is refused) or relocation of the family to a narco-state (my wording) is a Morton's fork on which no one should ever be forcibly skewered:
This form of collective punishment is anti-family and can send ripple effects throughout American communities, from home foreclosures to an increase in single parent households. It is a drastic penalty to impose considering unlawful presence in the U.S. is a civil violation that has gone largely unenforced for many years. It also discourages families from participating in the legal immigration process due to the risk of a potentially devastating separation. After more than ten years since the passage of the unlawful presence bars, it is now appropriate to look closely at their impact and examine whether they constitute sound public policy.
Although IIRAIRA and the administrative time required in the waiver adjudication process might seem to mandate this result, existing executive authority to administer the immigration laws readily allows for a suitable fix (until Congress can be persuaded to repeal the unlawful presence bars). Here are various actions the Obama Administration could take to solve the problem:
- Grant "parole in place" and expand the "technical-reasons" or no-fault-of-the-applicant forgiveness provision of Immigration and Nationality Act § 245(c) to allow persons otherwise required to attend an immigrant visa interview in Juarez to apply for their green cards through the adjustment of status process. This is the best option for non-willful overstays and Dream Act kids who EWI'd because the unlawful-presence bar would not be triggered and extreme-hardship waiver adjudication would be unnecessary since the applicant would not leave the United States; or
- Adopt a policy to confer extreme-hardship waivers within the U.S. before the consular interview to all non-criminal Mexican applicants based on the dangerous conditions in Mexico and the overriding equity of the family relationship to a U.S. citizen relative. This is similar to an old Immigration and Naturalization Service Operations Instruction and a precedent decision, Matter of Cavazos, which allowed comparable applicants to obtain green cards through adjustment of status despite inadmissibility; or
- Shut down the U.S. consulate in Juarez until conditions in the city are safe. (The State Department did close the Juarez post for a few days after two consular employees were killed last year.) State should instead designate alternative consular posts after negotiating with one or more friendly and safer countries to allow Mexican applicants eligible to apply for a hardship waiver to enter for the purpose of attending the consular interview. This approach would be modeled after the "stateside criteria" and "third-country processing" arrangements with Canada and other nations in the 1980s for Iranians and other foreign nationals who could not travel to their country of citizenship or last residence because of the unavailability of consular facilities there. It would require an agreement with the host countries to assure the readmission of any denied applicants through the grant of advance parole to reenter. Denied visa applicants given advance parole and readmitted to the U.S. would then be eligible under current law for adjustment of status, if USCIS granted an extreme hardship waiver, or for prosecutorial discretion, if the waiver were denied.