Current Legal Framework IIRAIRA, admissibility bars, and need for waiver reform The
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), signed into law by President
Bill Clinton on September 30, 1996, made major changes to the Immigration and Nationality Act, shaping the current framework of U.S. immigration policy. One significant byproduct of IIRIRA was the establishment of admissibility bars, which prevent certain immigrants from legally reentering the U.S. for extended periods—sometimes even permanently. Immigrants who enter the U.S. without authorization (as opposed to overstaying a visa) and later marry a U.S. citizen are unable to
adjust their status while in the country. Instead, they must leave and undergo consular processing at a
U.S. embassy or consulate in their home country. However, departing the U.S. triggers admissibility bars, preventing reentry for a specified period, often three or ten years. In some cases, a permanent bar may be imposed, making it impossible for the immigrant to return legally. Backlogs have become so extreme that an increasing number of families have turned to
suing USICS in
federal court to force the agency to adjudicate their waiver applications. The number of such suits, as tracked by the
Syracuse University research group
Transactional Records Access Clearinghouse, suggests strain on the federal judiciary.
Lack of discretion under IRAIRA In a 1998 press release, The
American Immigration Lawyers Association (AILA) wrote: IIRAIRA contains many provisions that strip the courts of any authority to review the decision of the
INS. Under IIRAIRA,
virtually all discretionary decisions affording relief to eligible individuals are no longer reviewable by a court. This 'court-stripping' is unprecedented and unconstitutional. Judicial review of individual decisions by INS officers and of INS procedures and applications should be restored in order to protect against mistake and abuse.
Consular Processing Consular processing—the process by which a
foreign national applies for a U.S. immigrant visa at a U.S. embassy or consulate in their home country to become a permanent resident—is often the cause of family separation for U.S. citizens. When a non-citizen spouse goes through consular processing and reaches their interview by a
U.S. State Department official, they may face new, or even incorrect, charges of inadmissibility and wrongful visa denials. The Consular Accountability Project, which describes itself as “a legal defense organization fighting for accountability and oversight of the consular process," states:Each year, consular officers with highly variable degrees of experience make decisions that forever alter the course of millions of lives. Though decisions are commonly erroneous and arbitrary, the executive branch asserts that the consular process is exempt from the basic constitutional protections that apply in all other areas of law. Too often, interviews at consulates are treated as interrogations where the suspect has no
Miranda rights. Accountability in the consular process is critical to protect the rights of mixed-status families and prevent executive branch abuse.
Current legal doctrine, though widely disputed, holds that consular decisions are not subject to review by the U.S. judicial system. This means that U.S. citizens who seek to normalize the status of their undocumented spouse may begin that legal process in good faith within the United States while physically together with their spouse, only to later be forced to leave the country and complete the process outside the jurisdiction of the courts established under
Article III of the U.S. Constitution. AILA writes:To understand how dangerous this doctrine is, imagine yourself in the following situation: You’re a US citizen with an undocumented spouse who has applied for a green card. Everything is going smoothly, your spouse appears eligible, and as the last step in the process, they fly to their home country for an interview at the US consulate. Instead of coming home with a green card as expected, the State Department tells your spouse they cannot return to the US at all. The State Department doesn’t give a reason, they simply say your spouse might engage in unlawful activity if allowed back into the US. You ask for clarification and receive none, and because you do not know the reason for the denial, you have no way to disprove it. What can you do to unite your family and bring your spouse back home? Most Americans will respond instinctively: 'I have the right to my day in court.' But according to the doctrine of consular non-reviewability, you don’t.
Supreme Court Justice
Sonia Sotomayor describes consular processing as an
"enormous risk" of "unexpected exile" adding that "Former consular officers tell [us] that this lack of accountability, coupled with deficient information and inconsistent training, means decisions often 'rely on stereotypes or tropes,' even 'bias or bad faith.'"
Cancellation of removal Cancellation of removal is an existing form of legal immigration relief available to spouses and children of United States citizens. However, this provision is insufficient to address the needs of the broader constituency of U.S. citizens in mixed-status marriages. • Cancellation of removal is only available to an immigrant in removal proceedings, not to those filing affirmative applications or denied abroad at consular processing. • One of several eligibility requirements of cancellation of removal is that "removal would result in
exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." • It can be claimed (and has been) that this standard is probably the
highest and most difficult standard that exists in U.S. law—even surpassing the “beyond a reasonable doubt” standard the government must meet in criminal cases. • Grants of cancellation of removal are statutorily limited to 4,000 per year, meaning they are adjudicated only after years-long waits. If, theoretically, every single one of the 1.2 million undocumented spouses currently married to U.S. citizens were to mount winning cancellation of removal defenses, it would take 300 years to award all such grants of relief. == Examples ==