When I started my career in immigration law, I helped lawful permanent residents obtain U.S. citizenship. Lawful permanent residents are immigrants who have permission to remain and work in the United States for the rest of their lives. That is why the term “permanent” is in their status. Most Americans know these people as green card holders. After being a lawful permanent resident for five years, or three years if you are married to a U.S. citizen, you have the option to naturalize and become a U.S. citizen. Once someone is a U.S. citizen, they have the right to vote and serve on a jury in the United States, and they have great freedom to travel internationally with a U.S. passport, something very important if you have not seen your family who still lives in your birth country for a long time. A lawful permanent resident does not have to naturalize though. They can still live and work in the United States for the rest of their lives but they are not required to apply for U.S. citizenship.
After about one year of assisting lawful permanent residents with applying for U.S citizenship, I started dabbling in other areas of immigration law, primarily helping people without papers obtain lawful status if they qualified. People without papers are called “illegal” or “undocumented” in the media and American communities. I prefer to say “people without papers”. A lot of these people are my clients and I see them as human beings, just like me. Using terms such as “illegal” or “undocumented” to describe them makes me feel as if I am dehumanizing them and implies the only thing I see about them is their U.S. immigration status. If you are curious or care to know, the term “illegal” is felt and viewed as very derogatory. “Illegal” generally brings to mind images of violent and dangerous people and these are not my clients. My clients are not violent people who came to the United States to destroy the American way of life but to make a better life for themselves and their families. They came to participate in the American dream because a lot of immigrants still believe in the American dream. Of course some immigrants commit crimes because immigrants are human beings, and some human beings get into criminal trouble from time to time. However, crime is not related to one’s immigration or citizenship status. Crime generally has to do with one’s environment and personal choices. Anyway, if you care about respecting human beings despite the fact you disagree with how they came to the United States, you should not use the term “illegal”. “Undocumented” is the preferred term and is generally not seen as offensive. I personally prefer to say “people without papers”.
Sometimes, if someone does not have papers, they can still qualify for immigration status according to laws passed by Congress. As an immigration attorney, I review their immigration and family history and see if they qualify for any sort of immigration status. If they do, I help them obtain immigration status and work permission in the United States that will someday hopefully lead to permanent residency and then U.S. citizenship.
You notice I use the word “sometimes”. I think most U.S. citizens do not understand how difficult getting papers in the United States can be. I remember during President Trump’s presidency, his rhetoric on the subject made the United States seem like a chump that poor and unsavory immigrants take advantage of all the time. During his State of the Union address, he talked about this “chain migration” that made me laugh out loud. He was definitely mischaracterizing how immigration works in the United States. I actually wanted what he said to be true because it would mean that I would be a far richer attorney than I am now because I would have way more clients that qualify for a visa in the United States. I also remember that short-lived movement of Vice President Mike Pence trying to argue that the 14th amendment did not apply to babies born in the United States to parents who were in the United States unlawfully. He implied the 14th amendment is a magnet for unlawful immigration but, from my personal recollection, never elaborated on the economic, social, and humanitarian reasons that drive people to leave their home countries. He used the term “anchor babies” a lot, implying that if someone has U.S. citizen child in the United States, all of the sudden they qualify for lawful permanent residency and can get papers in the United States. If that were the case, again, I would be a far richer attorney today because I would be making so much money off of all the immigrants who could simply qualify for a permanent residency because they have a U.S. citizen child. The truth is having a U.S. citizen child does not automatically grant you lawful status in the United States and obtaining lawful status is actually quite difficult if you entered and stayed unlawfully, no matter if you have U.S. citizen family members.
I believe “anchor babies” is also a derogatory term and should not be used if you desire to show respect or at least get someone who does not agree with you on politics to listen to what you are saying. The language implies all immigrants who give birth in the United States only did it to obtain lawful status. Their children are not human beings who they love unconditionally but rather things they use to cheat the U.S. immigration system. I think most immigrants have children because they want a family, like most people on planet earth. Regardless of the parents’ intentions, U.S. citizens should not be referred to as “anchor babies” because the term dehumanizes them and oversimplifies their identity.
There is a problem with unlawful immigration in this country and in every country in the world. Every country has an issue with unlawful immigration. The concepts of visas, passports, and needing permission to enter a territory claimed by a nation is relatively new. Migration is normal, especially when one area of the world is experiencing economic hardship. War, civil strife, and natural disasters also cause migration because someone’s home country has become unlivable. There is a reason behind every migration pattern. Migration is something that people can study, analyze, and understand. Therefore, people should not be afraid of migrants. Migrants are people who are just simply packing up their belongings and moving someplace else because their home is completely unlivable for whatever reason, natural, geo-political, or economic. Hopefully, with this knowledge that unlawful immigration is prevalent all over the world, people can remain calm and have enough sense to look at the problem with reason and logic rather than automatically demonizing someone who crosses a border without papers, especially when the people without papers are way more likely to be poor and oppressed in their home countries.
The more I started working with people without papers, the more I saw first-hand how our immigration laws disfavor poor people trying to get out of poverty and our laws do not really address the real and practical problems of the world and what really drives migration to a rich county like the United States. Our country’s immigration laws actually create more problems than they solve and I believe if most U.S. citizens, Democrat, Republican, moderate, and apolitical, knew the truth and saw what our immigration laws do to ordinary people, most U.S. citizens would be incredulous about how our immigration system operates and is run by a sometimes inhumane bureaucracy.
3/10 Year Bars
In a lot of ways, our current immigration laws, mostly established by the Clinton Administration in the late 90s, are antiquated, but I believe most of the laws passed by the Clinton Administration were not good ideas to begin with. For example, current immigration law states that if a person entered the country unlawfully and stayed in the United States unlawfully for at least 6 months but less than one year and then left the United States, they would not be able re-enter the United States lawfully for three years. The language used in the immigration context is, “They would be barred for three years.” That is their punishment for entering and staying here unlawfully for at least 6 months but less than on year. If a person enters the United States unlawfully and stays in the United States unlawfully for more than one year and then leaves, then that person is barred from returning to the United States for 10 years. You can guess that these bars were established to punish people for their past immigration violations but if you are a practical person and like to think how this affects real life, you can already start to guess how these bars would derail and ruin families’ lives, most of them U.S. citizens.
Let me use a real-life situation to show you the practical consequences of these immigration bars. Felipe, a Mexican citizen, comes to the United States when he is 19 years old. Felipe only has a 6th grade education because he had to drop out of school at a young age to work and support his siblings. Their whole family lives in extreme poverty and that seems to be their destiny unless Felipe can turn things around for his family. The Mexican economy is not great and Felipe needs to make more money to help keep his siblings alive. Felipe, taking a leap of faith and risking his life, pays a coyote (Spanish word for human smuggler) to smuggle him across the U.S.-Mexico border so he can work in the United States and make more money to send back home. He hopes the money he makes in the United States can help put his siblings through school so they will not have to suffer like he has suffered. He makes really good money in construction, about $500-$800/week, sometimes more. This is significantly more money he would ever make in Mexico with a 6th grade education. He is able to help feed his family and put some of his younger siblings through school, something he never would have accomplished if he stayed in Mexico.
After being in the United States unlawfully for five years, Felipe meets and falls in love with Megan, a U.S. citizen. She does not judge him for being in the United States unlawfully. She sees him as a good man and they share a lot of the same faith values. She wants to spend the rest of her life with him. Felipe and Megan get married. Megan files a visa application for Felipe because he is, after all, married to a U.S. citizen and surely qualifies for a visa! After about one year, the visa application is approved. The next step is applying for lawful permanent residency, the status that will enable Felipe to remain lawfully in the United States forever. But there is a huge problem. In order to get lawful permanent residency, the law requires Felipe to return to Mexico to attend a visa consular interview at the U.S. consulate in Mexico. Felipe must leave the United States. Felipe must then be inspected at a U.S. port-of-entry either on the U.S.-Mexico border or in a U.S. airport before getting lawful permanent residency. That inspection can only happen if he is outside of the United States and then seeks entry when he returns to the United States. However, remember that 10-year bar I just told you about? Yes, that applies to Felipe. After Felipe receives a visa, he has to wait 10 years in Mexico before moving back to the United States to get permanent residency that will allow him to live in the United States with Megan. So, either Megan and Felipe live 10 years apart or Megan moves to Mexico for 10 years and lives there with Felipe until the 10 yeas are finished. Felipe can apply to get his unlawful entry and presence forgiven (the language used in immigration law is waived but it essentially pardons or forgives him) so he does not have to wait 10 years. But, in order to be forgiven for his unlawful presence, Megan has to show that she will suffer extreme hardship if she and Felipe were separated for that long period of time or she would suffer extreme hardship if she were forced to move to Mexico. The problem is that simply being separated from a spouse does not qualify for extreme hardship. Yes, you read that correctly. The U.S. federal government does not accept the fact that spouses are being separated and having their family torn apart as good enough to establish extreme hardship. Extreme hardship would have to be that Megan was really ill and could not take care of herself or she would have a very hard time assimilating in Mexico if she were forced to join her husband in Mexico during his 10-year timeout. This extreme hardship test is not easy to meet and if Megan submits some basic letter stating how she would suffer greatly if Felipe were forced to remain in Mexico for 10 years or she would suffer greatly if she were forced to go with him, then she would most likely get her waiver denied and Felipe would be stuck outside the United States for 10 years.
Generally, something really awful has to happen to Megan or Megan has to convince the federal government something really awful will happen to her for her to obtain this waiver for Felipe. If Felipe and Megan are just two happy kids who got married, they will not get the waiver and Felipe will have to live in Mexico for 10 years before being able to immigrate lawfully back to the United States. During those 10 years, Megan either has to live in Mexico with Felipe or just choose to wait it out in the United States and visit him as much as she can. If they have kids, Megan will have to give birth to the children alone in the United States and raise them alone for the first few years of their lives until Felipe can immigrate back to the United States after 10 years. I do not recall Trump every telling anyone about these bars and punishments for unlawful entries and presence. To be honest, I am not sure he even knew about them.
The Lie About “Anchor Babies”
Also, something you should know is that if you simply have a U.S. citizen child, you do not qualify to get these bars waived. If someone comes to the United States unlawfully and has a baby here, that baby will not save them for these 3/10 year bars. They have no way to get lawful permanent residency proactively through their child. However, if the parent is here for more than 10 years and is placed in removal proceedings (i.e. deportation proceedings), the parent could ask the immigration judge to not remove (i.e. deport) them and argue that their U.S. citizen children would suffer exceptional and extremely unusual hardship if the parent was removed (i.e. deported) or the child had to move to another country with the parent. This standard of exceptional and extremely unusual hardship is an even higher and harder standard to meet than the standard Megan has to meet for Felipe. Also, this form of relief from removal only applies to people who are about to be removed from the United States. This is not a benefit one can proactively and offensively apply for. In addition, the person must be here for 10 years to qualify for this relief.
Let us say a parent is here for 7 years unlawfully, has a 4-year old U.S. citizen child with special needs, and is placed in removal proceedings. The judge believes that the 4-year old U.S. citizen child will suffer exceptional and extremely unusual hardship because of the child’s special needs, but the parent has not been in the United States for the required 10 years. The judge has to order the parent to be removed because they simply do not qualify for immigration relief. Let us also say someone has been here for 20 years and has 3 U.S. citizen children, ages 15, 10, and 5. That parent is placed in removal proceedings and is able to prove they have been in the United States for the required 10 years but the judge finds the 3 children would not suffer exceptional and extremely unusual hardship if the parent was removed and subsequently separated from their children for at least 10 years or, who knows, for the rest of their lives. As a result, the parent loses their case and the judge orders the parent removed from the United States. This means parents of U.S. citizens are removed all the time. Also, when a parent is removed, the 3/10 year bars apply to them so they cannot return to the United States (and return to their children) for 3-10 years. Looks like those anchor babies are not as useful as some people would like to make you think. If they were, for the third time, I would be a far richer attorney and I would not have to write this blog post because I would be so rich I would not waste my time on the internet.
These bars are the reason why so many immigrants still do not have papers in the United States despite having U.S. citizen or lawful permanent resident spouses, parents, and children. Some politicians want you to think that if someone just has a kid in the United States that the parent obtains lawful status but that is a lie and anyone who actually works for the federal government reviewing the visa and lawful permanent residency applications will confirm what I am saying is true. Politicians tell these lies to manipulate and scare American voters. I also think a lot of politicians are ignorant about the immigration laws and have no idea what they are talking about. They just have to figure out a way to manipulate American voters into voting for them and using illegal immigration as a scare tactic is easy and it works. Politicians also rely on U.S. citizens’ laziness to not check the facts themselves. The politician telling this lie does not care about you, your family, or your welfare. They only tell the lie to scare you into voting for them so they can have power and probably get millions of dollars from their book deal that will be offered to them simply because they are a controversial political figure in the United States. If they cared about you they would tell the complicated truth and figure out a way to solve the unlawful immigration problem. However, solving problems that make the world more just for everyone generally requires courage, hard work, logic, and some sort of dedication to truth. I also think the U.S. voter (me included) is to blame. We fail to really do our homework sometimes and a lot of us get caught up in the popularity contest of elections. I feel we sometimes miss the political candidates who actually care and practice wisdom.
These 3/10 year bars have torn families apart, and I know of one couple who just ended up getting a divorce after their waiver was denied and the husband had to stay in Mexico for 10 years. The reality is that these bars do not deter illegal immigration anyway. What immigrants run from is far worse than the discrimination they will face in the United States. People like Felipe have seen and experienced worse things than having a 3-10 year timeout from the United States once they leave the United States after entering and remaining here unlawfully. They already lived in the shadows in their home countries, unprotected by law enforcement, oppressed by organized crime groups and their own governments, and forgotten by their own political leaders. How is living in the shadows in the United States or being barred from being in the United States when they do qualify for lawful status any worse, particularly when they make way more money in the United States than they ever would in their home countries? Please remember that, even when Trump was trying to deter asylum seekers from coming to the Untied States, they were still coming. What immigrants run from is far worse than anything the United States would ever throw at them to deter them from coming.
A Solution
I do not believe everything has to be super complicated. I think the solution specifically for people like Felipe and Megan is rather simple and can benefit everyone—immigrants, U.S. citizens, and the U.S. government. The U.S. government should just automatically waive unlawful entries and presence when someone does have a U.S. citizen or lawful permanent resident spouse, parent, or child and they are applying for lawful permanent residency. Families can stay together and, in cases where there are children, children can keep both parents in their lives who will provide a loving and supporting environment for them to grow.
If the U.S. government still wanted to punish applicants for their past immigration violations, they could choose to impose a fine instead of a 3/10 year penalty outside of the United States. The lawful permanent residency applicant would simply pay a fine with their lawful permanent residency application. Most civil violations result in fines and immigration violations are civil violations so I think this makes sense and is consistent with how the United States already handles civil violations. It is true that the federal government can choose to charge someone with a crime when they enter the United States unlawfully but that is hardly ever done in practice. When the federal government tried this, it turned into a human rights and public relations disaster for the Trump Administration. It also resulted in a fashion foux pas for Melania Trump. Of course the fine amount should correlate with the applicant’s income to avoid straining the financial resources of some families that are not as well-off as others. With this set-up, families, particularly families with U.S. citizens, stay together and the U.S. government gets more money that the government can use to fund initiatives most U.S. citizens really care about or pay down that trillion-dollar deficit.
By the way, this “pay a fine” approach is already implemented in some cases. In the late 1990s, Congress passed a law stating that if someone has an approved visa petition that was filed on their behalf before April 30, 2001, then they just have to pay a $1,000 penalty to obtain a green card. We already do this for visa petitions filed decades ago, why not do it now? Former President George W. Bush is also proposing a way to lawful status for undocumented immigrants if they pay back taxes which would result in more revenue for the federal government.
Conclusion
I think most U.S. citizens would agree with this practical and humane approach. Some will say, “But that will just encourage them to keep coming!!” Unless you have not already realized it, let me repeat: They already are coming and will continue to come. What they run from is far worse than any mistreatment they will face in the United States and they know that. I think to stop people from coming, the President and his State Department will have to roll up their sleeves and engage in some good ole foreign diplomacy that actually addresses the root causes of migration. I think world leaders and corporations will also have to sincerely care about eradicating poverty in other countries. The United States will also have to start caring about what happens in Central and South America and Africa just as much as they care about what happens in countries in the Middle East. That is what really needs to happen to have more control over migration patterns and that will be far more complicated, I admit.
However, what does that have to do with Felipe and Megan? You cannot go back in time and change the past. Felipe immigrated unlawfully, but Felipe and Megan are married and they do not deserve to have their marriage ripped apart because of Felipe entering and remaining here unlawfully when he is a person of good moral character despite those two immigration violations. Ripping a family apart will not stop unlawful immigration and Felipe and Megan do not need to be punished so severely. Entering and remaining unlawfully does not warrant losing your family. We need to throw out the 3/10 year bars and do something that really benefits everyone and does not cause so much trauma and heartache in the lives of ordinary people, particularly when the 3/10 year bars do not actually solve the problem of unlawful immigration and possibly puts some children in the foster care system when their parents are removed. The 3/10 year bars only create more problems.
If you have questions about your or a loved one’s immigration status, please call or text us at (317) 534-6382 to schedule a legal consultation with our experienced attorney.
This blog post should not be construed as forming an attorney-client relationship. The blog post is only intended to educate the general public about immigration laws and their effect on real people.
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