Bad but Not Broken

How a System that Fails Immigrants Serves Politicians

In 1996, the Republican-controlled 104th Congress passed into law the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act—known, respectively, as AEDPA and IIRIRA—thus overhauling the more lenient immigration laws enacted by previous Congresses. The results of these two pieces of legislation have been predictably heartbreaking.

To see why, imagine a young “undocumented alien” from Mexico who has worked in this country for several years at some physically taxing, underpaid job—the kind of job most of us wouldn’t want to do even if we needed work. He falls in love with  a U.S. citizen and they get married. In due course, the couple have children, all of them born in the United States and therefore citizens of this country like their mother. The happy family is starting to live the American dream.

Eventually, the couple learn that, under U.S. immigration laws, the young wife can “petition” for her husband. Because he is married to a U.S. citizen, the man is eligible to “adjust status”—that is, to obtain a green card and in a few years become a citizen himself. They hire a lawyer, fill out the forms, go through the procedures, and are well on their way. For his final interview, he is required to leave the country momentarily, and travel to Ciudad Juarez or some other U.S. consulate city abroad. But under IIRIRA, immigrants who have entered the United States illegally and have lived in this country “out of status” for over 180 days face a permanent ban forbidding them re-entry if they leave the country even momentarily—even for the out-of-country interview officially required for adjustment of status. The man is trapped: in order to stay in the country legally, he needs to leave it; once he leaves, he may not be allowed to return.

IIRIRA thus imposes a total separation of husband from wife, of father from children, for ten, even twenty years. It can be as traumatic for the family of an undocumented alien as a divorce or a death.

It is true that U.S. authorities may, at their discretion, waive this penalty. But such a waiver is rarely granted, even to one whose spouse and children can demonstrate the required “exceptional and extremely unusual hardship”—something like a severe, life-threatening disease afflicting the U.S. citizen spouse or children and jeopardizing medical intervention and long-term care if the ban is enforced. But loneliness, heartache, despair, economic hardship (repossession of car and home, child-care expense, bankruptcy)—what the Immigration Courts like to call the “normal result” of a years-long separation—won’t be enough for that waiver.

By the time the man in our story sees his young children again, they may hardly recognize him. Of course, his American family could rejoin him in Mexico, but that too could be a terrible hardship, for all the reasons that led the man to leave Mexico in the first place. Their economic prospects there may be grim, and the children will grow up without the kind of education and acculturation necessary to make them responsible citizens of the United States, the country of their birth. So much for family values.

The unfairness of the system does not end there. IIRIRA authorizes the Immigration Service to use “secret evidence” against aliens—never revealed in court—if the evidence is deemed classified. It even allows deportees to be held in jail for years without a hearing. AEDPA, originally introduced by former Senate Majority Leader Bob Dole, takes away from the Supreme Court the power to review a lower court’s denial of habeas corpus.

The Latino immigrants most affected by these laws are not terrorists. They enter this country to work for low wages at jobs Americans don’t want. Our present immigration system also makes it very difficult to hire legal immigrants for such jobs. The paperwork an American farmer must get through in order to hire just one temporary agricultural worker legally is truly stupefying. The requirements for the H-2A Temporary Agricultural Worker visa involve the State Workforce Agency, the U.S. Department of Labor, and the U.S. Department of Homeland Security. Failure to comply with these requirements can result in penalties ranging from $375 to $16,000 for each noncitizen temporary worker hired to help bring in a crop.

In just the past two decades, we have enacted draconian laws to stop the immigration of a low-status, poorly compensated, and indispensable labor force, drastically penalizing them and their employers. Yet even undocumented immigrants contribute heavily to the U.S. economy through their investments and consumption of goods and services, increasing our productivity and lowering costs. Once legalized, they would also pay taxes.

The story of our young Mexican husband and father is a true story—the story of thousands of immigrants caught up in our cruel and self-contradictory system every day. And there are similar stories that are just as disturbing, stories of young people who were brought into this country as infants and grew up here, speaking American English, playing baseball and football, as thoroughly American as you or I, and who as young adults abruptly woke up to the amazing discovery that they are illegal immigrants themselves, unable to be gainfully employed, subject at any moment to deportation to a foreign country where they happen to have been born. They are as little prepared to live in Mexico or Guatamala as you or I would be.

A sharply divided Congress is obsessed with just two aspects of our immigration system: a quasi-militarized border-control system, and a path to citizenship for the eleven million undocumented aliens already here. Nothing is said about the families that have already been broken up by our current system. And nothing is said about the economic conditions—the combination of low wages here and immiseration abroad—that have produced larges waves of illegal immigration across our southern border. Undocumented workers who come here from Latin America are in desperate need of work partly because of U.S.-backed trade agreements that have made it harder for agricultural workers to support themselves at home. And the jobs they do here are jobs most Americans won’t do because they don’t pay enough to keep pace with the cose of living in this country. It is bad enough to blame immigrants for doing whatever is necessary to feed themselves and their families. But even as some U.S. politicians scapegoat this vulnerable group of people, they also support economic polices that only work because desperate people are still willing to come here and work for less than they deserve.

In other words our “broken” immigration system is not really broken. It works exactly as it was intended to for those who designed it. It provides an occasion for cheap moral outrage at those who “cheat” the system while also serving as a useful distraction from painful economic realities most politicians are unwilling to acknowledge, much less address.

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Heartfelt thanks to Mr. Dunne for his article revealing the situation of around 500,000 families which have a US citizen spouse and a spouse who is in the US without formal documentation. Congress has effectively criminalized their status and thousands of families have been broken up, many with small children.  A womnderfully written recent book describes the personal and political situations in detail.  Amor & Exile by Nathneil Hoffman and Nicole Selgado sets out the personal details and personal impact of this situation, as well as the policy history. Probably most accessible through Amazon, but check out Amor & Exile website.  Our family has walked this gauntlet.  Our lives have been incredibly enriched by the people we have met and the experiences that we have shared.  We have been saddened by the distant and timid support of our bishops, and the fact that little is said from the pulpits in non-Latino parishes regarding the immigration reform bill passed by the US Senate.  Rep. Steve King (R-Ia) is a Catholic "pro-life" tragedy who spews hatred for immigrants with religious impunity.It would be helpful for parishes to be organized to contact their congressional representatives and demand passage of the Senate immigration reform legislation.  But that Catholic organization has been reserved for Fortnite of Freedom foolishness and efforts to stop state legislatures from increasing the statute of limitations on the sexual abuse of children.  Alice and Terry Kelly

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About the Author

Patrick Dunne lives and writes in Houston, Texas. After a career teaching literature and writing, he entered law school at age fifty-three and practiced immigration law until his retirement in 1999.