President Obama on Thursday ordered his Homeland Security Secretary, Jeh Johnson, to review the government’s immigration policies to determine ways to make them more humane, a response, some speculate, to mounting pressure from advocates to stem deportations of illegal immigrants.
Here’s the problem. There are lots of people in the United States who have entered the United States with visas and overstayed them and lots of people who entered illegally. Most came to work. Many married and started families, started businesses, bought homes. Some of their spouses are lawfully present in the United States including as United States citizens. The children, those born here, are United States citizens. Some of these children are ill. Some are thriving in school. Some are grown and care for these parents or depend on their parents. Employers need these workers to pick our food, cook our food, clean our homes, run businesses – everything from the most modest of work to the most complex. Returning these people would divide families, cause great hardships and deprive businesses of workers. Because of these noble needs, there is pressure to let them stay. Many believe it is the humane thing to do. On the other had, these people broke the law and many resent their being given their goal of lawful residence in a process begun with an unlawful act. In essence, it is an argument between those who believe that the ends justify the means and those that do not – except for the nativists who have their own problems with allowing these undocumented people to stay.
Provisions for resolving the problem were contained in Comprehensive Immigration Reform legislation that passed the Senate but cannot get through the House of Representatives. The President is looking for ways to help. He asked Secretary Johnson to find ways. The President has already provided help to some of these undocumented aliens through DACA, the provisional waiver program, prosecutorial discretion, and some limited parole in place policies. He apparently would like to do more. Should Mr. Johnson need some suggestions, here are mine.
On the books now is a form of relief for aliens in removal proceedings who are in the United States illegally called Cancellation of Removal for Certain Nonpermanent Residents – INA § 240A(b)(1). To receive this relief, at the discretion of an immigration judge, and alien must:
1. Be in removal proceedings;
2. Have had continuous physical presence in the U.S. for at least 10 years;
3. Not have committed certain crimes – some quite minor and, relatedly, be a person of good moral character, again by not having committed certain crimes or certain conduct;
4. Have a parent, spouse, or child who is a citizen of the United States or permanent resident and show that this qualifying relative would show exceptional and extremely unusual hardship if the applicant for Cancellation of Removal had to leave the United States;
Congress allocated 4,000 grants of Cancellation of Removal relief per year. To get to the result of there only being 4,000 grants per year, considering the number of applicants, the Department of Homeland Security has taken a harsh line on meeting these elements. The courts of appeal have largely deferred to the Department of Homeland Security’s (DHS) interpretation of these elements. To a great extent, many more people could be granted Cancellation of Removal by loosening up the interpretations of the elements for the relief. Let me address each element listed above:
1. Make it easier for people who want this relief to be able to apply for it other than in immigration court or, ironic as it may seem, make it easier for people to get into immigration court removal proceedings.
2. The immigration “reforms” of 1996 and 1997, IIRIRA, defined the meaning of continuous physical presence in a very literal, count the days outside the United States fashion. INA § 240A(d). DHS took a more expansive approach, holding that absences after being tossed out of the United States without being sent first to immigration court would interrupt the ten years of continuous physical presence. DHS and the Department of Justice (DOJ) should apply INA § 240A(d) literally so more people would be eligible for the relief.
3. Built into the immigration laws are petty crime exceptions to inadmissibility and deportability for one minor crime of moral turpitude. This was based on the practical and humane consideration that anyone can make a minor mistake and that people are often pressured to plead guilty to minor crimes rather than face trial for small misunderstandings or minor acts. DHS has interpreted the Cancellation of Removal statute so that the petty crime exceptions rarely apply. This causes otherwise deserving people to lose their eligibility fro Cancellation because for a single minor criminal conviction. DHS and the DOJ should read these exceptions back into the law.
4. Exceptional and extremely unusual hardship is a nebulous term. DHS has interpreted this requirement in a very harsh fashion. The financial devastation to remaining family members, never seeing their parent or spouse again, and compelled relocation to places children and spouses may have never lived are most often not considered exceptional and extremely unusual hardships, contrary to most people’s notions of what hardship is. DHS and DOJ could reverse their harsh stance and take a more common-sense approach to hardship. Many Pre-IIRIRA cases have held that the exceptional and extremely unusual hardship standard does not have to be extremely onerous, requiring near life and death suffering to meet the standard. Or, DHS and DOJ could take a page from Nicaraguan Adjustment and Central American Relief Act (NACARA). Under NACARA, there is a presumption of hardship. Similarly, a regulation could be promulgated stating that a person who has lived in the United States for ten years and has a qualifying relative presumptively meets the exceptional and extremely unusual hardship standard.
Should these reforms be made, the goal would be for many more than 4000 aliens to qualify fro Cancellation of Removal each year. For those who have been found deserving but for whom a grant of Cancellation is not possible because of the lack of numbers, DHS could grant those people parole in place, allowing those with United States citizen spouses or adult citizen children to adjust status in the United States, giving them their relief sooner and shortening the wait list for grantees waiting for a number.
Secretary Johnson, these reforms, which are in conformity with existing statutes and based on rational interpretations of these statutes, could solve the problem of illegal immigration for many people while making sure that the undeserving to not take advantage of a benefit for long term residents with close family ties. Dated March 16, 2014.