For Legalization to Work, a Humanitarian Measure to Keep Families Together
Although there is congressional action seeking to extend the deadline, only five weeks remain before the legalization program for long-term undocumented aliens is scheduled to expire. In a final effort to get the word out to the estimated million or more aliens who are eligible for legalization but who have not applied, the Immigration and Naturalization Service has even tried stuffing fortune cookies and tortilla packages with legalization information.
The INS effort is misplaced. The problem is not that undocumented persons don’t know about legalization but that they know the program too well. They know that each alien must individually prove residency in the United States since Jan. 1, 1982, and that anyone who arrived after that date, even the spouse or child of an eligible alien, cannot qualify.
They know that ineligible family members have two choices. They can remain in the United States illegally, subject to deportation and perpetuating the alien underclass that legalization was intended to eliminate. Or they can leave the United States. Either alternative results in the actual or potential breakup of the family.
All studies show that the fear of family separation is the biggest reason why eligible aliens have not applied for legalization. So why did Congress fail to provide legal status for all members of a legalization applicant’s nuclear family?
Some members of Congress may not have known the extent to which whole families had become part of the undocumented population, a shift from the bracero days when men unaccompanied by families tended to come to the United States seasonally and then return home. Now, however, it is clear that the family-unity issue is thwarting the success of the entire legalization program. Congress and INS must act to fix the flaw.
A simple solution lies in an existing and unspectacular form of administrative relief curiously known as “voluntary departure.” While used primarily as a streamlined alternative to deportation--the alien chooses to leave voluntarily rather than go through deportation hearings--this procedure also allows aliens subject to deportation to remain in the United States when there is a “humanitarian need.” The immigration service has in the past recognized the humanitarian need inherent in family-unity cases. It has, for example, used the procedure to permit family members to remain in the country while awaiting immigrant visas.
The voluntary departure procedure meets the needs of all the players. It is straightforward and familiar to INS, which has already recognized it as an appropriate, workable remedy. For example, in October, 1987, INS invoked the procedure to prevent the separation of an undocumented alien child from two legalized parents.
The procedure benefits undocumented aliens by granting them both permission to be here and the right to work, an important feature for families in which the incomes of all members sustain the group. It answers congressional critics who charge that permitting undocumented family members to remain in the United States unfairly advances them ahead of those already in line for immigrant visas.
The critics misunderstand the significance of the different categories of aliens. Legalized aliens become “temporary-resident aliens.” After 18 months in that status they may apply to become “permanent-resident aliens.” But only permanent-resident aliens can petition for immigrant visas for their relatives. It would be more than 18 months before any legalized alien can even apply for an immigrant visa for a spouse or child. Thus, the relatives of legal immigrants for whom petitions have already been filed will receive their visas, permanent-resident status and citizenship long before any undocumented family member is granted voluntary departure status.
In short, voluntary departure is qualitatively different from both legalization and traditional immigration. It protects qualified relatives from deportation, but offers them no participation in our political community or priority in the process toward citizenship.
The immigration service should announce and publicize a new national policy authorizing use of the voluntary departure procedure for ineligible undocumented spouses and children who have been in the United States since before November, 1986, the date the new immigration law was enacted. Unless Congress extends the May 4 amnesty deadline, such a policy comes perilously late in the game. But the recent INS decision giving legalization applicants an additional 60 days after May 4 to provide the required documentation helps make the the procedure a meaningful solution.
If no announcement on family unity is immediately forthcoming, Congress must direct the INS to act. That will leave time for the words that count--family unity--to get out.
Now that’s something to stuff a tortilla with.
