Published March 7, 2016
Most folks would agree that if Congress goes through the trouble of enacting a constitutionally sound law, and our President signs on, that law should be enforced. That includes our immigration laws. But over the course of the past 35 years and 4 presidencies, our country’s undocumented population has swelled to more than 12 million. How did that happen? Unlivable conditions in the ever expanding list of crumbling countries, a lack of viable legal immigration options, and less than complete enforcement efforts by successive administrations, Democrat and Republican alike, are among the most likely explanations. Perhaps, we should ask Donald Trump, since he has cleverly, sometimes disingenuously, made this indisputable societal issue the centerpiece of his hugely successful campaign.
Maybe not, since the point of this memo is to inform the conversation about what our society should do to address the problem. Let’s start by cutting out the cringeworthy chest beating bravado of the Republican front runners who flex their law and order muscles by promising a swift and efficient round em up, ship em out deportation policy. For some of these candidates it’s become a contest of who can exclaim that policy the loudest, most frequently and from the highest hilltop. But to those candidates, and their enthusiastic supporters, I say: perhaps we should think twice about this idea.
First some basics about constitutional and immigration law. With few exceptions, each of the individuals who would be targeted for deportation are entitled to “due process of law”, and a fair hearing. Second, within the context of deportation proceedings (now known under the more gentle moniker, removal proceedings), the undocumented individual would have a chance at asserting a variety of defenses, including seeking relief known as “cancellation of removal”. Further, a grant of “cancellation of removal” leads to lawful permanent or “green card” status in the U.S.
To be eligible for cancellation of removal relief, the undocumented individual must demonstrate: a) they have been living in the U.S. for more than 10 years with no serious criminal activity, b) they have a U.S. citizen or lawful resident spouse, parent or child, and c) their forced departure would cause that U.S. relative extraordinary hardship.
Of course, getting approved for “cancellation of removal” is anything but automatic, since requests for relief within removal proceedings are typically the subject of fine tooth scrutiny and thorough questioning by Department of Homeland Security prosecutors and ultimately the reviewing judge. Nevertheless, millions of prospective cancellation of removal applicants are out there and may very well look forward to having a legitimate chance to legalize their stay in the U.S.
During his presidency, President Obama has deported more individuals on average per year than any of his modern day predecessors, with more than 438,000 being deported in 2013. For the leading Republican candidates though, that is just a drop in the bucket, compared to truly meaningful and effective action they promise to take.
But do those Republican candidates, and their supporters, know or want to talk about “due process” or “cancellation of removal”? Do they realize it will likely take an investment in the billions of dollars to effect an exponential expansion of our current immigration enforcement infrastructure? Most important, do they realize that their plan may in fact lead to a significant portion of the 12 million getting green cards? Maybe an amnesty, legalization, path to citizenship or whatever other forbidden label you want to use isn’t such a bad idea.
PUBLISHED March 7, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois