Mario Aguilar shows photos of his four sons as he waits for work outside the Casa del Migrante shelter for migrants in Tijuana, Mexico. Aguilar, a Mexican citizen, had been living in the United States for 28 years before he was deported.

© 2007 David Maung

Current US immigration law threatens American families’ right to live together.

According to the Pew Hispanic Center, nearly 17 million people in the United States live in families in which at least one member is an unauthorized immigrant. Despite these family relationships, most unauthorized immigrants have no realistic way to gain legal status under existing law.

Some of these immigrants have valid applications for legal status filed by their US citizen or permanent resident family members, but low numerical limits for family visas and processing inefficiencies have led to a massive backlog. An adult son or daughter from Mexico, for example, may wait almost 20 years after a petition is filed by a US citizen parent. This backlog creates tremendous pressure throughout the immigration system, leading to increased illegal immigration and visa overstays.

Others are ineligible to apply for legal status, despite their family relationships, because of the length of time they have been in the US without status or because of the way in which they entered the country. Even spouses of US citizens, if they entered unlawfully, cannot gain legal status without leaving the country—and that can trigger a 10-year bar to returning. A common misconception is that having a US citizen child can enable an unauthorized immigrant to immediately gain legal status. A US citizen can apply for a parent to gain permanent resident status only once he or she turns 21, and even then a parent who has been in the US without status for over a year will have to leave the country and wait 10 years to apply for legal status. A recent change in administrative policy will allow some relatives (excluding parents of US citizens) to apply for a waiver of the 10-year bar, which requires proof of extreme hardship to a US citizen relative, before leaving the country. But this change only gives people the option of applying for the waiver in advance and is limited to a small number of unauthorized immigrant family members. It does not eliminate the general bar most relatives face to gaining legal status.

Other immigrants are completely barred from getting a visa through their US citizen partners. The Defense of Marriage Act, known as DOMA, excludes lesbian and gay couples from the definition of “spouse,” thereby preventing thousands of US citizens from receiving legal recognition of their same-sex partners for purposes of immigration.

Thus, under current immigration law, most unauthorized immigrants with US citizen family are under a constant threat of deportation. In most cases, immigration judges are not even empowered to take family unity into account. In just the past two years, the US government has carried out over 200,000 deportations of people who said they had US citizen children. These parents have almost no way to return legally. Immigrants can be barred from the US for 10 years, or for life, if they leave after having been in the country for at least a year without authorization.

Immigration law is particularly harsh on people who face deportation after criminal convictions, even for lawful permanent residents convicted of minor or old offenses. Amendments that went into effect in 1996 stripped immigration judges of much of the discretion they once had to balance family unity against the seriousness of the crime. As a result, many lawful permanent residents, after serving whatever sentence is imposed by the criminal justice system, feel they are further punished with exile. If they return without permission to the US, they are often charged with the federal crime of illegal reentry, punishable by up to 20 years in prison. Those who, often in desperation, return repeatedly end up serving, as one criminal defense attorney put it, “a life sentence on the installment plan.”[1]

Recommendations: Improvements to the US immigration system should be grounded in the fundamental responsibility of government to protect families.

  • Restore the power of judges to consider family unity in any removal decision and expand the eligibility criteria for cancellation of removal and other legal defenses that take into consideration the impact on US citizen and permanent resident family members.
  • Reevaluate the country quotas and number of family-based preference visas available, set decades ago, to reflect the current situation.
  • Ensure bi-national same-sex couples receive the same recognition and treatment afforded to bi-national opposite-sex couples.
  • Create avenues for immigrants who are currently inadmissible, including those who have criminal convictions, to apply for permission to gain legal status if they have lawfully present family in the US and can currently demonstrate good moral character.

 

Arrested and Deported After an Unpaid Ticket

“Alicia S.” came to the United States in 2000 without ­authorization. She found work at a hotel, married another unauthorized immigrant, and started a family. Her daughters, both US citizens, are now 11 and 9 years old. At age 5, her younger daughter’s kidneys began to fail. In 2009, ­Alicia’s husband was deported (she has not heard from him since). A year later, police stopped Alicia for pulling out of a parking lot without her lights on. Surrounded by ­several squad cars, she was arrested for not having paid a ticket for driving without insurance, while her daughters cried in the back seat.

That was the last time Alicia saw her daughters. After she spent two weeks in jail, a local judge ordered her released, saying it was wrong for her to be jailed for traffic violations. But immigration authorities then immediately arrested her, and she was deported to Mexico.

Alicia’s daughters are now in foster care. Soon after being deported, Alicia received word that her daughter had successfully received a kidney transplant. “I felt so much joy, I was so happy,” Alicia said, from the sitting room of a ­shelter in Mexico for dozens of women recently deported from the United States. “But I felt sad that I could not be in the hospital taking care of her.”

Alicia has tried to cross back into the US three times, but she was caught in the first two attempts, and in the last she got lost and turned back. She has been abandoned by smugglers without water and food, and she has spent three months in immigration detention and two weeks in federal jail. She also now has a criminal record for the federal ­misdemeanor of illegal entry. She said, “I begged the judge to forgive me, that I was desperate because of my ­daughters.” She has been told the conviction would make it almost impossible for her to get a visa now. But Alicia cannot imagine living without her daughters: “I have not lost the desire to try again.”

Human Rights Watch interview with Alicia S. (pseudonym), Tijuana, Mexico, October 17, 2012.

We Live Day to Day Praying that the Immigration Laws Will Change

“Chet,” 67, and his Taiwanese partner “Wei,” 59, have been committed partners for two decades, during most of which time Wei has lived in the US without legal status. As Chet told us, “We have lived together and been devoted to each other for the last 20 years and have tried every way possible to get him permanent residence.… Every possibility has been a dead end because of immigration laws against gay partners.… [Wei’s] mother passed away two years ago but he could not chance returning for the funeral for fear he would not get back in.” Now Chet fears that if he dies, Wei will be deported if he comes forward as an heir. “We live day to day praying that the immigration laws will change and we can live together in peace without the constant fear that something will happen that will cause his deportation.”

Email communication from “Chet” to Immigration Equality (names changed at his request), September 1, 2003, in Human Rights Watch/Immigration Equality, Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under US Law, May 2, 2006, https://www.hrw.org/reports/2006/05/01/family-unvalued-0.

 

Human Rights Watch reports on related issues:

Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions

Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy

Forced Apart (By the Numbers): Noncitizens Deported Mostly for Nonviolent Offenses

Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples Under US Law

No Way to Live: Alabama’s Immigrant Law

 


[1] Human Rights Watch telephone interview with Victor Torres, criminal defense attorney in San Diego, California, June 29, 2012.