Is Immigration Reform Possible Without Congress?
“Can immigration reform take place without Congress’ approval?”
I’ve often argued positive immigration policies could be implemented even without any legislative changes by Congress.
Before becoming an immigration and deportation defense attorney in Southern California, I worked as an administrator for the federal government. I participated, behind the scenes, in the interactions between politics and bureaucracy. I witnessed where Congressional policy left off and where bureaucratic procedures took over.
Now, a new USCIS memo asks the same question.
USCIS Memo Sparks Wake-Up Call
Recently, my isolated view was given support by a USCIS study memorandum. Entitled “Administrative Alternatives to Comprehensive Immigration Reform,” the draft memo was leaked and made public.
Since the memo covered immigration reform, it’s not surpising the memo quickly became a topic of political distortion.
Even though the memo was undated – meaning it was a work still in progress – it sparked outcries by immigration reform opponents. They quickly called it a secret plan for amnesty of illegal immigrants.
As usual, they were wrong.
First, they don’t understand how government bureaucracies work.
Based on my federal government experience, I know draft proposals almost always precede any concrete actions being taken. Quite commonly, actions are not taken by the federal bureaucracy for a long time without studying . . . and studying . . . and studying, some more, the issue at hand. Bureaucracies move with the speed of a tortoise, not a hare.
Second, critics mistakenly label the ideas discussed in the memo. None resemble amnesty.
A few examples are illustrative.
Permanent Residence For TPS Beneficiaries: Parole And Unlawful Presence
One suggestion is to promote family unity for TPS beneficiaries.
According to the memo, USCIS could modify its position on unlawful presence for immigrants granted Temporary Protected Status. Currently, many individuals who live in the U.S. from certain countries, like Honduras, are eligible for TPS protection if they meet certain requirements. Once TPS ends, they are returned to unlawful status and subject to deportation.
For example, Marco, who entered the country, through the hills, from Honduras several years ago. He applied for and was granted TPS status. While in TPS staus, he was granted pemission to legally work here. He has worked steadily since that time. He has paid all of his taxes. Four years ago, at a friend’s birthday party in Corona, he met Susan. About twelve months later, they married. They now have two U.S. citizen children.
Susan, a U.S. citizen, wants to immigrate Marco. Under current immigration rules, he has to go back to his home country for his green card interview. Because he has been here for many years, and he entered without permission, Marco is not eligible to return to the U.S. unless he can win a rarely-granted special waiver (I-601 waiver). These are hard to win. Most likely, he will not be allowed to become a lawful permanent resident.
The leaked memo suggests that if USCIS simply treated his TPS status as a parolee status, he would be able to interview for permanent residence here. He would still have to meet all other applicable requirements and demonstrate good moral character. He could be required to pay a hefty penalty fine for entering without permission.
A minor change, without Congressional approval, would provide a chance for Marco to remain with his wife and children in the United States.
What’s free or simple about the modified process? Nothing.
This is not amnesty. However, it would reflect our national policy to protect families from being needlessly torn apart.
I-601 Waivers: Revisiting The Hardship Standard For 3 And 10 Year Bars
The reason why Marco would probably not be allowed to return to the U.S. is due to “hardship.” In order for Marco to win a waiver allowing him to return back to the U.S., he has to show his wife would suffer extreme hardship due to his absence.
The standards for extreme hardship are not set by Congress. The language, extreme hardship, is set by Congress.
The immigration bureaucracy is responsible for deciding the standards needed to prove extreme hardship. This is not new authority.
As an immigration attorney in Corona and other parts of Riverside, I have long asserted our standards of hardship reflect an unconscionable situation.
An extreme hardship, in my view, does not reflect an impossible hardship. When so few individuals can win a hardship waiver, serious questions are raised about the fairness of that standard.
The recent draft memo merely recommended setting clear and reasonable requirements for hardship. This is not amnesty.
After all, an applicant must still show a strong degree of hardship.
Family Unity As Immigration Policy Standard
The opening paragraph laid out the memo’s purpose: family unity.
Family unity has long been the foremost principle upon which immigration law rests. The draft memo cuts no new ground in that sense.
What’s new is that it outlines possibility for President Obama to set new immigration directions – with or without Congress.
I still remain less than positive about this adminstration’s commitment to immigration reform. But I’m willing to be proven wrong.
By Carlos Batara, Immigration Law, Policy, And Politics