The National Immigrant Justice Center (NIJC) would like to see three broad areas addressed in legislation. Congress must: 1) Create a pathway toward legal status and citizenship for undocumented immigrants currently in the United States; 2) Establish a humane, flexible, and efficient visa program that responds to the future needs of our country and respects family unity; and 3) Reform the current immigration system to alleviate its unduly harsh consequences and procedures.
NIJC has outlined five guiding principles as well as some specific, high-impact policy changes below. Though not all-encompassing, these changes would positively impact the lives of thousands of aspiring Americans and should be considered in any legislation that moves forward.
Principle I: Immigrants are an integral part of our communities. They will contribute to and participate more fully in our society if they are afforded a path toward permanent lawful status and citizenship.
1. Pass legislation that creates a pathway to citizenship that is as inclusive as possible. This would include protections for young people eligible for the DREAM Act, their parents, and others who have contributed to our communities. NIJC applauds the administration’s leadership in providing temporary relief from deportation to immigrant youth, but alongside them are millions more who have made positive contributions to the nation. NIJC therefore supports legislation leading them toward permanent, lawful status.
2. Eliminate unlawful presence bars. NIJC greatly appreciates the administration’s recent steps to permit stateside processing of waivers for some who face unlawful presence bars; however, limited by statutory provisions, the new policy only addresses one set of unlawful presence bars. Separating families or forcing people to continue in unlawful status because of past unlawful presence is a disproportionate punishment meted out on the undocumented individual and her U.S. citizen family members.
3. Eliminate permanent inadmissibility for claims to United States citizenship. The current law includes a permanent inadmissibility ground for claiming U.S. citizenship that cannot be waived. In many cases, individuals have identified themselves as U.S. citizens to find work, out of fear of arrest, or because they were unaware of their status. This permanent bar is disproportionate to the offense, especially because it falls heavily on individuals who have resided here for long periods of time and have become a part of the fabric of our communities.
Principle II: Families, including LGBT families, should not be torn apart.
4. Increase the number of family-based visas. Family values are the cornerstone of our nation’s immigration policy; family unity impacts the well-being of our children, communities, and economy. Extremely low quotas for many categories of visas have led to long waiting periods, particularly in family visa categories.
5. Congress must recognize same-sex partners for purposes of family-based petitions and view members of LGBT families as qualifying relatives in hardship analyses. Legislation like the Uniting American Families Act (UAFA) would allow same-sex, bi-national couples – including those in civil unions and domestic partnerships – to access family-based immigration benefits.
Principle III: The criminal justice and immigration systems should only issue penalties proportionate to the violation.
6. Restore discretion to immigration judges by reviving forms of relief that existed before 1996. Time has demonstrated that the 1996 changes have led to unnecessarily harsh consequences for many families, and the uneven results of litigation have led to unfair retroactive consequences for decades-old offenses. Mechanisms other than removal, such as a period of testing or “probation,” would better achieve national goals.
7. Adopt proportionate penalties for individuals who return after being removed. One of the inevitable results of deportation without regard to the facts of individual cases is an increase in the number of individuals who re-enter the United States without inspection. Individuals who have lived in the United States their entire lives and whose immediate families reside in the United States are desperate to return and reunite with their loved ones. Under our current legal system, the act of returning after being deported is considered a felony and is punished as harshly as armed robbery. Today, more than half of all federal criminal prosecutions are for immigration-related crimes. Common sense changes would allow more law enforcement resources for the prosecution of serious criminal activity.
8. Reject any expansion of crimes that may render individuals removable or inadmissible. Immigrants who have committed minor offenses, have completed their criminal sentences, or have been sentenced only to probation face excessive punishment in the immigration system – including prolonged detention, deportation, and excessive or permanent separation from family members.
Principle IV: Individuals facing deportation must understand their rights and have the ability to meaningfully present their cases before a judge.
9. Ensure access to counsel. Under immigration law, non-citizens who are placed in removal proceedings are entitled to counsel at their own expense. However, many are unable to access counsel because of lack of financial resources, lack of providers in remote areas near detention facilities, lack of available pro bono assistance, and lack of information about available resources. The criminal justice system recognizes the right to appointed counsel; the immigration system must as well.
10. Ensure access to a hearing before an immigration judge or court. The rising number of “automatic” deportations where individuals are not given a hearing before an immigration judge denies their due process rights. Because of the complexity of immigration law, imparting immigration officers the sole authority to issue an order or removal may result in legally erroneous deportations. Individuals facing removal from the United States must have an opportunity to appear before an immigration judge about their removability and their right to remain in the United States.
11. Eliminate the one-year asylum deadline. Twenty percent of asylum claims are denied because of the technicality that they failed to apply within one year of their arrival in the U.S. The one-year deadline disproportionately affects individuals suffering from grievous trauma due to past torture or persecution and those who were unaware that they might be eligible for protection, such as LGBT asylum seekers. Unable to apply for asylum, these individuals are only eligible for relief through withholding of removal and/or the Convention Against Torture. Since these forms of relief do not lead to permanent lawful status, individuals who meet the legal definition of “refugee” under our laws or can otherwise show they will be tortured in their countries of origin face indefinite limbo status. Our national commitment to protecting victims of persecution requires the elimination of this bar.
12. Give the immigration court system the resources necessary to fulfill its mission. The lack of judicial law clerks and other staff leave the court unable to handle its docket effectively, which ultimately leaves non-citizens in legal limbo for years and undermines the effectiveness of immigration enforcement. The solution cannot be to remove people without due process; rather we must allocate appropriate resources for the court.
Principle V: Individuals should not be arbitrarily or indefinitely detained while they wait for a court hearing.
13. End the detention bed quota. Immigration detention has expanded exponentially in recent years as the Department of Homeland Security (DHS) has increased enforcement and Congress has authorized more and more detention beds. With your leadership, Congress must correct the misguided notion that DHS is required to detain 34,000 immigration detainees every day. As a nation, we set a dangerous precedent if we allow a detention quota to exist in any system.
14. Redefine “custody” to include alternatives to detention such as electronic monitoring and required check-ins with DHS. Immigration detention should be used only as a last resort, and alternatives to detention would allow DHS to enforce immigration laws in a more responsible, cost-effective, and humane manner than physical detention. In particular, there should be a presumption toward alternatives to detention for vulnerable populations – including asylum seekers, LGBT individuals, and the mentally and physically disabled – as DHS has consistently proven incapable of providing appropriate care. DHS’s practice to date has been to place these individuals in solitary confinement, an unacceptable solution.
15. Give immigration judges authority to review all immigration detention determinations. Many detained non-citizens are not eligible to request release or to seek a less restrictive custody determination. All non-citizens should have an opportunity to apply for release or a less restrictive form of custody before an immigration judge. Further, as in all situations in which the government deprives an individual of his or her liberty, detention should be based on a showing that it is necessary and proportional.
NIJC looks forward to working with the administration and the 113th Congress to keep our families and communities together and ensure due process protections for all individuals in this country.
For more information please to contact Alexis Perlmutter at (312) 660.1363 or by email.