Border Crisis or Not, U.S. Continues to Operate a Rolling Amnesty

By David North on July 10, 2014

What the president never mentions, and may get lost in the understandable focus on the border crisis, is the fact that the United States runs a series of continuing amnesties all the time, year-round, year after year.

About half of the new green cards issued each year do not go to new arrivals, they go to aliens already in the county in either nonimmigrant or illegal status; it is a process called "adjustment of status". There are about half a million of these adjustments a year.

Some parts of this process can be viewed as benign or inevitable (or both). For example, a U.S. citizen marries a foreign student in F-1 status; the marriage puts that student on the road to green card status, and this would happen whether or not the marriage took place in the United States (and thus an adjustment) or abroad (and thus a new arrival).

Some other adjustments, at least in my eyes, are questionable in that they cause an illegal alien to become a legal one, always in spite of violations of the immigration act, and sometimes other crimes as well.

Let's look at just one of these paths to legal status, despite the violations.

In the cases of interest, the alien has entered the United States through fraud; he or she, but it is more often a male, obtained a visa or a border crossing card and then violated its terms, usually by overstaying the specified period or by working when that was not allowed, or both. In my view, if not that of the administration, these are serious violations.

But there is another element in all these cases; there is a U.S. or green card spouse, or a U.S. citizen child who will, according to the alien, suffer "extreme hardships" if the alien is not allowed to stay in the country, despite the alien's record of lawlessness.

Now extreme hardship is supposed to be the exception, not the rule, but you would never know it from looking at the ongoing statistics of USCIS; in five cases out of six, when an alien applies for a waiver of various kinds (including the fraudulent entry one) USCIS decides that bouncing that person will, in fact, create an "extreme hardship" on some legal resident of the United States. The percentage of approvals in these cases is a remarkable 84 percent.

If the alien gets that nod it does not lead to an automatic green card, but it does ease the way for that to happen.

Why does such a large portion of this illegal-alien subpopulation get a "yes" decision? They are by definition "inadmissable" to the United States (though all in the United States anyway). What's going on here?

Let's look into the details of this program for the answers to those questions. Now it gets a little complicated.

What I have just described is an instance of an application for a Waiver on Grounds of Inadmissibility under Section 212(i) of the Immigration and Nationality Act. It is one of the more popular of six different waivers under the INA, most of which deal with erring, but usually resident, illegal aliens, on one hand, and their legal U.S.-resident relatives on the other.

This turns out to be a non-insignificant part of adjustment of status cases each year. There were 34,925 approvals of waivers of inadmissibility of various kinds in FY 2013, most of which presumably led to adjustments of status — or about 7 percent of that flow. For the numbers, see these USCIS data.

Now, given the privacy rules that are all too common in the immigration business, we cannot look at successful applications for such waivers at the staff level. We can, however, get some information about a roughly comparable set of cases: those that were initially turned down at the staff level, but were accepted by USCIS's Administrative Appeals Office (AAO). (AAO, to its credit, turns down most appeals from staff denials in this category.)

So what did those erring aliens say about their relatives? And, at what point in their lives did they violate our laws, and at what point do they ask forgiveness for those violations?

In order not to load the deck, I am going to summarize the first four cases published in 2014 in which AAO ruled that there indeed would be extreme hardship to the citizen relatives. (I had not even glanced at them before I decided on the ones to examine.) We will call them cases A, B, C, and D because the AAO, out of a peculiar sense of privacy, redacts the names of the aliens, and their lawyers, and the decisions makers, and sometimes much more.

Case A. We are told little about the illegal from Trinidad who will benefit from the waiver, but we do have this, from the decision:

The adverse factors in the present case include: the applicant's willful misrepresentation of a material fact in order to procure an immigration benefit; the continued use of a fraudulent identity; periods of unauthorized employment; and a conviction for disorderly conduct in March 2000.

One can glean from the context that the conviction came from a crime in the United States; this suggests that he arrived in the United States before that date. Given that his U.S. citizen son was 11 years old at the time of the decision, the son was clearly conceived some years after his father's illegal arrival in the States. The alien's wife is also a native of Trinidad and lived there until she was 16.

She gets much attention in the decision, though we are not told when she married the alien:

As stated above, the record contains documentation addressing Ms. [redacted] history as a victim of physical and sexual abuse and her on-going mental health issues. According to the social worker, [redacted] is dependent on her husband in every aspect of her life, to the extent that she needs to speak to him multiple times during the day to get his input regarding simple, everyday matters, and has difficulty doing things on her own due to a lack of self-confidence. [Redacted] reported that she fears she may harm herself if she were separated from her husband and does not believe she can cope without him. The record also contains evidence that [redacted] has worked as a nanny for the same family for over 12 years, earning $280 per week. The record therefore shows the difficulties [redacted] would experience as a single parent to the couple's son, who is currently 11 years old, with limited income, particularly considering her mental health issues.

Another factor in the eyes of the AAO is that the alien is now the son of, the spouse of, and the father of U.S. citizens. (There is no comment on the apparent contradiction of his wife holding down the same paid job for 12 years and her personal anxieties.)

Had he been deported at the time of his 2000 conviction, he would not have had a child, and perhaps not a spouse, and the spouse and the parents might not yet have become citizens. But given the government's delay in deporting him, he secured all of these connections.

In short, in 2000 there would have been no reason not to deport him; now matters are more complicated. For the nearly full text of the decision and its redactions, see here.

Case B. The illegal in this instance is a woman from the Philippines with a U.S. citizen husband and two citizen children. We know that she entered fraudulently, but do not know when, presumably before the birth of the children. (It is all too typical in these cases that little is reported on the illegal alien and much on the hardship-bearing citizen and the children, who are almost inevitably young citizens.)

In this situation the younger child has medical problems:

The physician states that the applicant must bring her son into the office frequently, and that the son requires twice-daily administration of two medicines given via nebulizer, one pill daily, and a daily application of emollients for his eczema. The physician emphasizes that the son's stability requires "constant vigilance" and that any disruption to the family would put him at risk for pneumonias and hospitalizations.

Again, had the government moved against her before her marriage, or even after the marriage and before the births, there would have been no reason not to deport her. The decision can be read here.

Case C. The alien this time is an illegal from the Ivory Coast. She has a U.S. citizen spouse and four U.S. citizen children; she takes care of the kids and he works as a truck driver. Despite his employment, he has recently been through bankruptcy. In addition:

The applicant's spouse states that he has a history of anxiety attacks; he was prescribed medication to control his anxiety; the applicant's immigration situation has been a source of anxiety; the applicant called 911 when he had an anxiety attack in 2009; and the applicant stayed with their children at the hospital while the doctors treated him. The applicant's spouse's medical records corroborate these claims and show that he has been taking a prescribed antidepressant. The applicant's spouse was diagnosed in 2009 with panic disorder.

Since the children are all said to be citizens, they were presumably born in this country, after their mother's illegal arrival. Had she been deported in the years after her arrival and before the first pregnancy or the marriage, none of her claims of an extreme hardship could have been made.

In this instance, given the four children, the one income, and the bankruptcy, one can safely assume that the family is on food stamps — her illegal status does not impact the family's eligibility — and one might assume Medicaid as well. One wonders if Medicaid plays a role in the case of the four-year-old child in Case B; it must in the case of the mental problems of the spouse in Case A. Such taxpayer-cost matters are not mentioned in any of these four cases. It probably does. The ruling can be seen here.

Case D. The illegal in this example is a male from Jordan who lives in the Detroit area. He has a U.S. citizen wife who is a native of Japan, and who does not like the prospect (who can blame her) of moving in with her husband's extended family of 14 in a small house in Jordan. As usual we know little about the alien, except that he has a job and apparently no non-immigration criminal record.

Again, there is much about the citizen spouse:

The applicant's U.S. citizen spouse asserts that she will suffer emotional and financial hardship were she to remain in the United States while the applicant relocates abroad due to his inadmissibility. In a declaration she explains that she is crying all the time and is scared and worried regarding the prospect of being separated from her husband. As a result, she explains that she has fallen into severe depression and is experiencing anxiety attacks and appetite loss. She contends that as a result of her depression and anxiety, she has sought medical treatment and has been prescribed medications.

She apparently has secured a license to be a nail technician, but no job. There appear to be no children in this case. We cannot tell if this couple is using tax money for her medical care. The AAO decision is here.

This then is the flavor, admittedly anecdotal, of one of our continuing, rolling amnesties for illegal aliens. We may attract some of the "best and brightest" in other parts of our immigration program, but not in these four cases.

Clearly by not moving to deport aliens early on we risk that the individual illegal will acquire extensive U.S. ties, as all four of these did, that render them (at least in the eyes of the Department of Homeland Security) non-deportable.

To fix all of this requires a kind of muscular immigration reform that is not on the White House agenda.