In the wake of Federal Judge Bolton’s decision taking the teeth out of the controversial Arizona immigration law, I thought I would take a moment to clear up a commonly held belief that is totally false. In listening to the interviews of people, from the average guy on the street to Federal Senators, I am astounded at how little almost everyone knows about immigration and how many completely inaccurate notions are floating around out there. Immigration is unique in that so many people have an opinion on the subject that seems more akin to a religious belief than an opinion, and yet very few of those closely held opinions are based on the reality of the law.
Politicians have done a great job in grabbing this highly inflammatory issue and shouting about “securing our borders” “no amnesty for illegals” “anchor babies” “chain migration” and “illegal means illegal.” They spew these words in speeches and on their TV ads like they mean something because it gets votes not because they really want to do anything about the problem. They are using the ignorance about the immigration law as a sling shot to fling themselves into the spotlight for the self serving agenda of advancing their own political careers, with no regard to the fact that this kind of inflammatory speech is really making the country more polarized on the issue and pushing a solution farther and farther away.
The one that most angers me is the term “anchor baby.” This term is generally understood as meaning the children of undocumented people who are born in the United States. It is generally held that these children “anchor” their parents and family to the United States and create some right of legality (most commonly citizenship) for the family of the US citizen child.
Let me be clear. This is not true. Anchor Baby is an absolutely meaningless term that is meant to cast hatred and scorn on CHILDREN because of some perceived notion that they will help their parents, and maybe their brothers and sisters and cousins and aunts become citizens. A US Citizen child cannot apply for residency for their parents and siblings until he or she turns 21 years old. They can never apply for grandparents, cousins, aunts, uncles or any other distant relative you can envision.
Once that child applies for his or her parents, the parents must complete the immigration process just like everyone else. That means, if the parents are overseas they must complete the process at the consular post abroad. If the parents entered the country LEGALLY and over-stayed a visa, they may be eligible to apply for Adjustment of Status, a process whereby they can have their interview here in the United States without leaving. If they entered the country illegally the parents will have to return to the country of birth for their interview and then apply for a waiver for the time they spent here without permission. This waiver, called the I-601, is only granted if the applicant can prove that, if they do not get the waiver it will cause exceptional and extremely unusual hardship to a US Citizen or Lawful Permanent Resident SPOUSE or PARENT. Notice a child is not a qualifying family member. So, if that parent’s only legal relative is his or her child, they will not qualify for the waiver and, thus not get Residency. The penalty for living here illegally is 10 years of ineligibility for any immigration benefit. So if the parents or siblings do not qualify for the waiver they will have to wait another 10 years out of the country to apply again.
Of course there are all kinds of other factors that may impact that parent’s chances of getting residence like the number of illegal entries to the US, criminal record, prior removals, deportations, expedited removals, or voluntary departures. You get the idea. In terms of nefarious plots to have babies here to become citizens, this plan is a horrible one. It takes 21 years, minimum, with no guarantee of actually becoming a Lawful Permanent Resident. Hardly an anchor.
Oh, and the brothers and sisters, currently there is a 10-20 year wait for a visa (referred to a priority date becoming current) in this category. (www.travel.state.gov/visa/bulletin/bulletin_5092.html) So when the sister turns 21 it will still take another 10-20 years, depending on your country of birth, to even get an interview, and then all the obstacles that I described for the parents still apply for the sibling.
The only other right having a US citizen child gives an undocumented person is IF that person gets put in removal (formerly called deportation) proceedings and IF that person has no criminal record and has been physically present in the United States for 10 years or more, that person can present a defense against removal called Cancellation of Removal. To win this kind of case you have to prove “exceptional and extremely unusual hardship” to a US citizen or Permanent resident Spouse, Child or Parent. This is different than a 601 waiver in that it is presented to an immigration judge once the person is in removal proceedings. This defense is EXTREMELY difficult to win. More often than not the level of hardship necessary is found not to be present and the person is removed to his or her country of birth.
Having a baby here does not give the parents the right to stay. It does not make parents or other family citizens or even Lawful Permanent Residents. It does not qualify mom and dad or undocumented brothers and sisters for any kind of social programs including food stamps and welfare. It does not make deportation more difficult or even take longer. Other than the rights listed above they are not an anchor for anything.
So be wary, this term and other incendiary slogans are meant to mislead you. They are meant to inflame you and anger you and paint the picture that there is some vast Mexican Conspiracy to procreate within our borders in an effort to bootstrap themselves into citizenship. (I say Mexican knowing that they are but a small part of the countries represented by undocumented immigrants but recognizing that this group is the one receiving most of the ire by the politicians and population. Let’s be clear the Arizona Law targeted Hispanics in general and Mexicans specifically. They were not envisioning filling those tents in front of the police stations with white people who failed to produce a birth certificate when stopped by the police for speeding.)
The term “anchor baby” and its ilk are terms filled with hate and meant to mislead and confuse. Let me also point out that the important part of this term is not “anchor” but “Baby.” Politicians have lost sight of the fact that these are BABIES and their parents and siblings are people. Human beings, who are trying to do the best they can for their families. This seems to be an intellectual exercise for many politicians. They have so lost touch with the fact that these words they spew in ignorance and hate are referring to human beings, children and babies.
The problem with our immigration system is that for years we have been putting band-aids on the symptom and ignoring the problem. We have this problem because our immigration system makes immediate family members wait 10-20 years for a visa. We have a system where business have no reliable way to verify the right to work We have a system where the penalty for living in the United States without permission is 10 years that you don’t qualify for any immigration benefits which is a lifetime when we are talking about being away from one’s family. We have a system where kids that were brought here illegally as young children have no way to legalize their status, go to college, join the military or get a job. We have a system that gives student visas to educate some of the brightest minds in the world then give such a small number of work visas every year that we are unable to reap the benefits of these educated minds. We have a system where there are people still waiting for asylum interviews that filled back in the early 1990’s. We have a system that allows kids who have waited for 15 years for a visa to “age out” of a category and remain undocumented while the rest of their family goes on to residency.
My point is that immigration is exceedingly complex and those armchair commentators throw logic into the wind and waive their fists in anger shouting “illegal means illegal” are doing nothing but showing how truly ignorant they are of the situation. Come to my office and do my job for 1 week. Tell the 17 year old who fled her home in Honduras to family in Kansas City when she was 14 years old because her grandfather was repeatedly raping her and her parents did nothing to help her that “illegal means illegal” go home. Or the 30 year old who was smuggled out of El Salvador in 1991 after he had to hide under his house for a week with his 9-year-old brother so the army would force him to fight or the guerillas wouldn’t kill him that waited for his asylum hearing for 19 years that he has to go home. Or the 28 year old with 3 US citizen kids (who doesn’t even speak Spanish) but was brought here illegally when he was 6 months old, that I’m sorry there is nothing to be done. I am just one attorney with one client base. Ask any immigration attorney and they could spend hours telling you of their Sudanese client who has been a US citizen for over 10 year and who has been trying to bring his minor daughter to the United States since he came as a refugee almost 20 years ago only to be denied over and over because his daughter had a village birth certificate not a state issued one. Or the family who waited since 1993 for their priority date to become current only to find out that one of their 5 children will not qualify anymore for a visa because she is 6 months too old. There are so many stories and they are all about people. Human beings trying to do the best they can for themselves and their families.
Since the Arizona decision came down reaffirming that Immigration is the responsibility of the Federal Government, more and more politicians are now calling for a Constitutional Amendment to repeal the 14th Amendment. This is arguably one of the most important amendments in that it contains the famed “privileges and immunities” clause and the “equal protection” clause as well as apply the protections of the Bill of Rights to actions by the States as well as the Federal Government. This commentary is as short-sighted as it is offensive. If the goal is to reduce the number of undocumented immigrants in this country I fail to see how revoking the Citizenship of millions of children accomplishes that goal. Even giving a passing thought to this nonsense is dangerous because it automatically creates a class of perceived criminals. It is particularly appalling when you realize that this new class of “criminals” are babies. How much humanity have we lost that it is suddenly a good idea to eviscerate our Constitution, repeal an amendment that is the basis for almost all Supreme Court decisions that recognize civil liberties and criminalize babies in order to deal with a problem that could be fixed by people putting aside their blinding anger and fixing the cause.
Another issue with this stunningly idiotic proposal is where do you draw the line. What if one parent is a US Citizen and the other a Permanent Resident, is the child a citizen or resident? What if mom is a resident and dad has TPS, or dad is on a student visa and mom is a J visa holder, or what if mom and dad are both undocumented but later become Residents? What if mom is here from the Federated States of Micronesia and dad is undocumented but later is a victim of a crime and qualifies for a U visa? What if the person has entered illegally but files a case for political asylum and is awaiting her interview? What if Mom isn’t sure if the father is her US Citizen boyfriend or the undocumented alien with whom she had a one-night stand? What if she puts the US Citizen’s name on the birth certificate but in a later paternity suit it is discovered that the undocumented person is really the dad? Does the child then lose the Citizenship that he thought he had? And what if in that time that kid has grown up and claimed to be a US Citizen when, in fact he was not? Now he is not a Citizen and has incurred a permanent bar from becoming a resident for a false claim to Citizenship. What if two people who are unlawfully present from Haiti have a child and then later can qualify for TPS because of the earthquake? I could go on and on. This talk of repealing the 14th amendment is not going to fix anything, but instead, criminalize children, engender more hatred and create a mess of biblical proportions in trying to draw that line.
I just touched on a few of the aspects of the opposition that I find ignorant and offensive. There are many others. I am not saying that you have to agree with my vision of how immigration should be reformed, but don’t fall for the political garbage that is designed to do nothing but get politicians noticed and garner votes. People who run on the platform of “illegal means illegal” or “no amnesty for illegals” or “anchor babies should not be citizens” do not want change. The more ignorant, and angry and polarized people are the better for them and their self-serving agendas. With all their talk about “securing our borders” their ignorance, misinformation and fear-mongering speech is pushing a solution farther away and prolonging the perceived threat to our borders by stalemating the process and maintaining the status quo.
Until we address the root of the problem, ie our system is too onerous and arduous, the waits are too long and the visas too few, nothing will change. Our borders are going to continue to be porous, undocumented people will continue to come here, people will continue to overstay their visas and employers will continue to hire cheep labor. Look at reputable websites like www.aila.org, www.takeourjobs.org, Look at information about the AgJob bill or the DREAM Act, look at www.immigrationpolicy.org even look at the USCIS web site, www.uscis.gov do not just believe the hype. Whatever your stance maybe on reform, make it an informed stance based on the reality of the situation and not the self-serving propaganda of Politicians who are building their careers on keeping people angry and turning children into criminals.