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More answers on proposed immigration waiver changes

The Obama Administration announcement last week that it wants to allow some mixed immigration status families to remain together in the United States while they apply for hardship waivers was briefly turned into media debate fodder and then, apparently dropped because it is just too difficult to explain. But the few conservatives who cried foul, including Texas Republican Lamar Smith who wrote the 3- and 10-year bars into law in 1996, have very little ground to stand on here. As I reported last week, it has been in the works for a long time, it’s highly technical, it’s been suggested by multiple government and NGO reviews of the waiver process, it does not change any laws and it does not provide any new benefits for undocumented immigrants.

Houston immigration attorney Laurel Scott, who has written extensively about waivers, said the proposed rule actually improves compliance with the law. The waivers were originally intended to prevent the hardship of family separation, she said, and the proposed process would minimize the time that immigrant spouses and children of American citizens must spend abroad.

Still, the timing of the announcement and its provenance from the White House is clearly political and the pundits briefly made hay from this latest administrative decree. The moment in this news clip when CNN anchor Erin Burnett asserts to former American Immigration Lawyers Association president David Leopold that anyone who legitimately marries an American citizen can get a green card (then looks down, bites lip, blinks) highlights a huge problem for advocates of immigration reform.

Watch the clip at 2:12 for that moment:

Kris Kobach, the Kansas Secretary of State and crusading attorney who helped draft anti-immigrant legislation in Arizona and for state legislators across the country, skillfully puts the onus back on “illegal aliens, whether they decide to marry a U.S. citizen or not.” And Leopold is not quite able to counter what Moderator Burnett declares to be quite rational.

If the news that the Customs and Immigration Service will now process some “family unity” or family immigration waivers stateside accomplishes one thing, it should demonstrate to the American public once and for all that hundreds of thousands of American citizens have been living in the shadows with their undocumented spouses for the past decade.

Here’s the weird thing: Burnett is mostly right. Immigrants who marry U.S. citizens ARE generally eligible for a green card. Our national immigration system remains, technically, family friendly. BUT if they are in the United States illegally or face any of more than 60 different “inadmissibilities,” that green card may remain just out of reach.

There has been a lot of talk about this “catch-22” in the past week. USCIS puts it this way in the rule notice:The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) inadmissibility that bars that alien from obtaining the immigrant visa.

Here it is in plain English: In order for an immigrant who entered the country illegally and then married an American citizen to get a green card, he or she has to leave the United States. But leaving triggers, in most cases, a 10-year ban (that Congress approved in 1996). To salve this catch-22, Congress crafted a series of pardons, or waivers, available for many, but they are complicated and time consuming and a bit risky to get. Applicants must show that if they are not granted a visa, their American citizen spouse or parent will suffer “extreme hardship.” Three quarters of the immigrants seeking waivers to enter the United States are from Mexico and require a visit to Ciudad Juarez, Mexico; I traveled there last January to see the process first hand.

Because these waivers are difficult to understand and a major financial and emotional and legal burden for many of the couples who need them the most, many, many couples choose to stay in the US, under the radar, rather than applying for green cards and facing the ban and subsequent waiver process.

Enter Candidate Obama. The USCIS is now proposing a tiny tweak in the process that could reassure many couples. They will be able to apply for the pardon BEFORE they leave the US to pick up their visa. This proposed rule (at this point it is still a notice of intent to publish a proposed rule) would provide provisional waivers to some couples so that when they return to the US Consulate or Embassy in their home country, they will be able to get the visa more quickly and efficiently and in fewer steps.

There are lots of waivers for lots of different violations. This rule change would apply to a VERY limited set: only people who “entered without inspection” and have a US citizen spouse or parent could get the provisional waiver. So if your fiancé is a citizen, you have to get married first and if your mom is a permanent resident, you won’t qualify for a provisional waiver.

Also, if you are like Nicole, whose husband has a permanent ban, and who is already living abroad, you won’t qualify. Bear in mind that the difference between a 3 year, 10 year and permanent ban is not that great. If you have been here illegally for 6-12 months, you get a 3-year-bar and if it’s more than a year you are barred for 10 years. In both cases you would be able to utilize the new provisional waiver before leaving the US to get an immigrant visa. But if you entered the US twice, say, after a trip home to see a sick grandparent or even to introduce your wife and kids to your family—even if not caught—you are banned permanently without an opportunity for a waiver. (In the case of this permanent bar, an immigrant may be able to reapply after waiting 10 years abroad, but only a few people have to tested this procedure to date.)

It is impossible to know how many couples in the US are currently eligible for a waiver of some type. Minneapolis immigration attorney Michael Davis said today that he’s gotten dozens of calls in the past week but many of the couples inquiring face a permanent ban and so the provisional waiver would not help them.  Still, Davis thinks that processing the waivers in the US will encourage many couples to apply, once the new rule is finalized, which is supposed to be  by the end of the year.

“I think it’s going to be an incentive for a lot of people to come out and do it,” he said.

In FY2011, USCIS received 23,262 I-601 waiver applications and approved 17,790, roughly a 76 percent approval rate. The approval rate in Ciudad Juarez was closer to 90 percent last year, according to a USCIS spokesman. More than 100,000 people have applied for waivers since 2006. But there are many more people out there who are unaware of the benefit or have been unwilling to take the risk and expense of applying.

One question that remains is what will happen to applicants who are denied a provisional waiver. They will still be in the United States without papers. On a USCIS stakeholders call yesterday, immigration officials did not answer this question, instead seeking suggestions from the public, but an FAQ on the USCIS site does adress the issue:

Q. What would happen to individuals who are denied waivers under the proposed process?

A.They would be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA).  For example, convicted criminals, public safety threats, and those suspected of fraud will receive NTAs.

In other words, many of the people denied, if not priority cases for ICE, would just be back to square one—undocumented and married to Americans. But at least they would be with their families in the States rather than separated or forced to move under duress. Going into 10 months of political campaigning, I am glad that Obama is at least signaling a willingness to discuss the deep relationships that Americans have with the undocumented population. While families and family values are a fine starting point, I continue to hope that the candidates will examine their own relationships with migrants, with Mexico in particular and  with our national stake in immigration reform.

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Some mixed-status families to get immigration reprieve

Waiting room at the U.S. Consulate in Ciudad Juarez

After a year or more of quiet planning, the Obama Administration will announce today that it intends to process immigrant hardship waivers within the U.S., allowing many more undocumented immigrants with U.S. citizen spouses and parents to apply without risking the immigration bars that have plagued hundreds of thousands of families since 1997.

Julia Preston at the New York Times broke the story early Friday morning, quoting Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, the agency that handles waiver requests: “The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship.”

The changes are not immediate and will have to undergo a year-long rule making process, according to the Times. They may also be subject to significant political and Congressional push back during the coming year.

The waiver process has been a major element of my reporting for Amor and Exile, and I have been hearing hints of this change for about a year now, though the Administration kept it under tight wraps. In January 2011, I visited the U.S. Consulate in Ciudad Juarez, Mexico where 75 percent of all of these waivers are processed and officials there hinted that USCIS was working on a plan to consolidate some of its international operations within the United States.

In August I had discussions with congressional staff on Capitol Hill who told me that the Congressional Hispanic Caucus had been pressuring Obama to make this change.

More recently I learned that things had been changing in Juarez since I visited a year ago. Much of the USCIS staff had left for posts in the U.S. and immigration attorneys in the U.S. were noticing the wait times growing and some degree of disorganization in processing hardship waivers. USCIS announced a conference call on October 14 to explain a new procedure for people wishing to file their I-601s, or hardship waivers, in which they would send the application to a service center in the United States rather than filing at a foreign consulate or embassy. But on the same afternoon that it was scheduled, the conference call was suddenly canceled, even as attorneys waited for the call to begin. It was never rescheduled.

The expected announcement Friday in the Federal Register signals the administration’s intention to allow immigrants to apply for the I-601 hardship waiver from within the United States, rather than forcing them to leave the country first, which triggers 3-year, 10-year and even permanent bars from re-entering, and presents a high risk for many families who may otherwise qualify. The new policy, once approved, would provide more assurance that an applicant qualified for the waiver before he or she left the country to pick up the visa. It could help out many mixed immigration status families who qualify for waivers but have been afraid to leave the U.S. in order to apply.

According to the New York Times:

The journey toward the green card to which they were entitled was so fraught with risks for the illegal immigrants that many families simply decided to live in hiding and not apply.

Now, Citizenship and Immigration Services proposes to allow the immigrants to obtain a provisional waiver in the United States, before they leave for their countries to pick up their visas. Having the waiver in hand will allow them to depart knowing that they will almost certainly be able to return, officials said. The agency is also seeking to sharply streamline the process to cut down the wait times for visas to a few weeks at most.

I have not seen the language of the Federal Register notice (it does not appear to be posted as of 3 am EST Friday) nor have I spoken to anyone since seeing the New York Times article on Twitter just now, but there are a few major questions about this policy that come to mind.

  • Will it further define “extreme hardship?” Up to now, the immigrant seeking a waiver has to show that their American citizen or permanent resident spouse (or fiancé/fiancée) would suffer extreme hardship if they were not granted a visa. But that hardship is not very well defined and is largely up to the discretion of the official reviewing the case. For example, having American children together or being forced to live apart from a spouse is not considered a hardship.
  • What about couples who do not currently qualify for a waiver? Common immigration violations like re-entering the country after a deportation or even just a quick trip home disqualify many people for the waiver. Many of the families who have avoided the waiver process and remained in the shadows may still not qualify for this new program.
  • What will happen to families who are denied the provisional waiver under the new process? Will they face immediate deportation?

I will try to get some answers to these questions soon. [UPDATED post here.]

In the meantime, the news gives new hope to many families. From the New York Times story:

“Yay!” said Nancy Kuznetsov, an American citizen and immigration advocate who was separated for more than four years from her husband, Vitali, from Belarus. Ms. Kuznetsov has battled for years for the waiver fix.

“This is a wonderful humane change that recognizes the importance of American citizens,” said Ms. Kuznetsov, vice president of American Families United, an organization of Americans facing struggles with the immigration system.

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To more rights for mixed-immigration status couples in 2012

2011 brought a higher profile to the plight of mixed immigration status couples in the form of news articles and public campaigns, but there is still much work to be done to educate the public about the impact of immigration bars, detention and deportations on tens of thousands of American families.

U.S. Rep Luis Gutierrez, a Chicago Democrat, held tours throughout the spring touting family reunification and the Dream Act. Most of the coverage focused on his call for President Obama to use his administrative powers to halt deportations of people with strong family ties to the Unites States.

The events that Gutierrez held included hundreds mixed-status families, however the spin often focused on the U.S. citizen children, which some polling has shown to be the most sympathetic victims of deportations, rather than spouses. Also, media coverage tends to label, or dismiss these stories as “Hispanic issues.” However, American citizen spouses also gained some traction in the press in 2011.

In one of the most high profile cases of the year, Pedro Guzman and his U.S. citizen wife, Emily Nelson Guzman, won a reprieve and were reunited [with video] in May after Pedro spent 19 months in immigration detention.

Being the spouse of a U.S. citizen didn’t help much. Emily could petition for him to become a legal resident, but in that scenario, an attorney told her, Pedro would have to leave the country before being accepted for reentry. He would also have to obtain a special waiver because of his arrest record. She was advised that his chances would be slim.

In May, Kevin Sieff wrote an interesting Washington Post story about the families of deportees trying to educate their kids in Texas.

In June, three exile bloggers were featured in a UPI wire story about the many online ties that bind their community together. Kelsey Sheehy, a reporter at Medill News Service, which I think is a service of the Medill School of Journalism at Northwestern (though it’s hard to tell for sure), starts with Cheryl Arredondo at Monterrey, What the Hell?.

Arredondo is part of a growing online demographic: American-born wives of deported immigrants who are using blogs, forums and Facebook to find support and sanity. Their spouses entered the country illegally and, when the immigration system caught up with them, their wives relocated to Mexico to keep the family together.

Erica Pearson at the New York Daily News wrote a similar story in July.

Bonding with each other online, the wives describe enduring months of separation or moving to their husband’s home country to face learning a new language or figuring out where to send their kids to school.

And in September, PRI’s radio program The World ran a piece from Britta Conroy-Randall that discussed the vibrant online club of “deportees wives,” quoting Emily Cruz, the Real Housewife of Ciudad Juárez:

“I’m so happy because in Juarez of all places, I’m not afraid to go to the movies, we can go out and be about and be normal and not constantly be afraid,” Cruz said. “I feel more-free in Juarez, Mexico than I did in the suburbs of Phoenix.”

And as the year went on, more and more American spouses began to use the online petition site change.org to rally support for their families.

Another high profile couple was reunited in August—Tony and Janina Wasilewski were featured in the documentary Tony and Janina’s American Wedding. Janina was deported back to Poland and Tony, her naturalized Polish-American husband, fought a long battle to get her back.

2011 was also a fast paced year for same-sex bi-national couples. The repeal of Don’t Ask, Don’t Tell and the Obama administration’s decision to not defend the Defense of Marriage Act in court leant much momentum to the movement for equal immigration rights for same-sex couples. Still, Obama’s Department of Homeland Security has not moved as quickly as many would like to either delay decisions on spousal visas until DOMA is officially repealed or to begin to grant them administratively.

Anthony John Maak and Bradford Wells, a married, bi-national couple from San Francisco, were denied a visa in August, but appealed the decision and Maak has not been deported yet, as far as I can tell.

Same-sex couples have had some success in winning stays of deportation, based on new DHS guidelines that require adjudicators to take into account an immigrant’s ties to the country before deporting them.

Sujey and Violeta Pando are one recent couple that has been able to stay together after Sujey won a delay pending establishment of the new deportation guidelines. Henry Valendia and his husband, Josh Vandiver, won a similar reprieve in June. And a Connecticut congressional candidate, Mike Williams, and his Dutch partner Bart Hoedemaker, raised the issue in August, when Hoedemaker’s job was to come to an end, costing him his work visa.

And then there is this couple, which makes an excellent point:

In 2012, our book, Amor and Exile, will tell the stories of more mixed-status couples—both gay and straight—to demonstrate that a broken immigration system affects the rights of American citizens in very serious ways. We look forward to continuing this dialogue here, on our Facebook page and through my Twitter feed, where most of these links have appeared previously. May the new year be prosperous for the ever-winding American experiment with democracy!

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Señorita

Epigraph, via Prof. Leopoldo Santos Ramírez in Matrimonios de anglos y mexicanos en la frontera, which is now overdue at the Boise Public Library:

So he told her the story of his family
The trouble that brought the barbed wire
And of all the things he couldn’t change
And then he told her that he loved her
—”Señorita,” Words by DeVito and Flowers, sung by Don Williams

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Can we really fight deportations one at a time?

In the last month we’ve seen a lot of exciting news on the political front regarding support for undocumented immigrants. Undocumented Dream Activists Jonathan Perez and Isaac Barrera turned themselves in at a Border Patrol office on November 10th in an effort to draw attention to conflicting policies in the Immigration and Customs Enforcement agency—ICE is not following internal policy to prioritize resources by only detaining and deporting serious criminals.

A little over a week later, on November 21, actions by the Alabama Coalition for Immigrant Justice (ACIJ, One Family One Alabama Rally) brought together a number of elected officials from the states of California, Illinois, New York, Texas, and Arizona to hear from Alabaman elected officials, law enforcement and community members about how the draconian HB56 is undermining the economy, security, and collective spirit of goodwill and justice in their state.

Countless journalists and media outlets are cropping up increasing the amount of in-depth, well-balanced coverage that the subject deserves (see our blogroll) This is positive press, and a step in the right direction as far as I’m concerned. More and more people are questioning the increasingly intolerant environment that hardworking undocumented immigrants encounter in the U.S.  It’s more heartening than President Obama’s relative silence on the matter of being the one President who’s deported the most individuals (and his term isn’t even up). A perception of outrage and action is far better than the depressing panorama revealed by the competing Republican candidates for the 2012 elections with regard to immigration policy.

But there is one immigration and the media-related phenomenon that I feel like I ought to view as positive but that in reality I view as somewhat concerning. It is the amount of petition signing requests I’ve received regarding individuals on the brink of deportation in the last several months. Don’t get me wrong—ever since I became an environmental activist at 15, I learned the power of petitions for enacting change. And ever since I got Internet at my house where I live in exile with my husband (a former undocumented immigrant in Mexico), I dutifully sign on to these sites and sign the petitions. I don’t normally “state a reason” for signing the petition, but if I were to, I’d say something like, “Read the inscription on the Statue of Liberty” or “because this student wants to contribute to American society, and we need more people like him/her.” Then I think to myself, I hope they have better luck than we did, and go on with my day’s business. Some of them do, happily, end in victory.

It’s not that I’m not against getting signatures on petitions per se—the problem I see is that the cases aren’t letting up, much less ever ending. Today I read a tweet that we need to get someone home with their fiancee by Christmas. I think to myself, yes, we do, but how many other thousands of individuals besides this one person would also like to be home for the holidays with their loved ones? Last week I read an article by Valeria Fernandez about a woman from Michoacan whose husband is American and whose run of luck in the U.S. may be about to come to an end. She has all the same potential tragedy if she had to go back to Mexico as any of the petition requests I’ve received; she would be separated from her family, her business would be ruined, etc. But a quick search on change.org revealed no hits for Maria Teresa Fuentes. As I read the article, her story sounded more and more eerily like my husband’s previous situation, and the sense of helplessness we had when facing our final decision to take destiny into our own hands and move to Mexico. Her husband’s comment: “I just want to go to Washington D.C. (to) meet with someone there and see what we can do to help my wife,” he said. “This gives me so much grief. Someone has to listen.”

But every time I receive a petition benefiting a single person’s case, I can’t help but wonder if trying to win immigration reform case by case is the most strategic direction for the movement to go in. Even though I’m experiencing the direct effects of displacement by deportation, I have yet to feel fully entitled to make my strategy criticisms public, since I’m “only a spouse” and “not an expert” (hopefully I’ll get over that issue). But I ask anyways: what would happen if we combined all the energy spent on individual cases and petitions and used it to lobby for comprehensive immigration reform on Capitol Hill that we can rely on, that’s truly fair and just, and/or, in the case of ICE, agency-wide policy follow-through?

More than most people I know, I want to see undocumented students be able to complete their educations and go on to be successful professionals as legal U.S. residents. I want immigrant spouses to be able to stay with their American families on U.S. soil (or wherever they choose) without having to go through stressful forced relocations the way we’ve had to (or worse). But I am concerned about the current nature of the discourse and political action regarding immigration reform.

My most idealistic expectation is that we shouldn’t need to start a petition, or find a representative in Washington for every single case. More than just victorious immigration cases that boil down to luck or influence, opportunities are needed for people who don’t have access to sites like change.org but who still deserve a shot at legalization. I worry that today’s “good feeling” of one victorious petition campaign, despite making a positive but tiny dent, distracts us from the overall panorama—that millions of individuals are living in an undeserved underground due to a long detour in how our country values its immigrants of all skill levels and skin colors. We need to acknowledge the importance of all immigrants to American society, not just the wealthy, well-educated, or papered ones, and work to eliminate the knee-jerk biases that come with incomplete understandings of the system.

There is a lot of history to this movement that I’m not privy to, despite the fact that I’ve read and experienced much more about it than most of my friends and family. There have been all sorts of failed attempts at reform and even worse laws passed that have made things worse for immigrants and polarized the situation further. It’s a dog-eat-dog world, the U.S. immigration scene, the kind that pits descendants of undocumented immigrants against their brethren who don’t have the benefit of laxer laws or amnesty. It’s the kind of situation  that leaves activists with no choice but to split into factions and seek their best chances in Congress. Dream Activists may be uniquely suited for organizing around this issue, as students in a closer-knit collegiate setting. And it’s harder to argue with the idea that young children and students who arrived in the U.S. undocumented by no choice of their own ought to be extended the same rights as legal residents, vs. getting behind adults who, despite not having had “a line to wait in,” made an adult decision to seek economic refuge via illegal entry.

Perhaps that’s where the problem arises: the inherent lack of unity among the individuals affected by these policies (I’d argue, all of us).  It’s a difficult matter to speak frankly about, even in families with affected individuals. But it’s a matter we must address if we are to make any substantial headway in terms of comprehensive immigration reform.

And when it comes to activism that targets positive change in the lives of immigrants, I would hope that in addition to campaigns won by the individuals who manage to pull off major online mobilization or gain personal favor in Washington, public backlash will grow and coalesce against policies that unfairly target ALL individuals, students and adults alike, who frankly, the U.S. economy and many American families depend on.

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Testing Alabama’s and ICE’s deportation process

Isaac Perez and Jonathan Berrera are currently in immigration detention in Louisiana

[quote]”Hey, what’s going on, Boss?”[/quote]

The cell phone video below shows two young activists going into a Border Patrol office in Mobile, Alabama and basically turning themselves in. Their names are Jonathan Perez and Isaac Barrera. They turned themselves in to the Border Patrol on Nov. 10 in order to test the Obama Administration’s use of prosecutorial discretion in pursuing deportations.

[quote]”What’s it to ya?”

“I’m undocumented too.”[/quote]

“We want to reveal the truth and show [Immigration and Customs Enforcement] for what they really are, as a rogue agency which has no accountability while they separate families,” Perez, a 24-year-old activist from Los Angeles, told Colorlines.com after being detained and sent to the South Louisiana Correctional Center in Basile. Perez and Barrera are interviewing other detainees and collecting other deportation stories from inside .

The action was supported by Dream Activist, a national network of grassroots groups that support passage of the Dream Act and The National Immigrant Youth Alliance. According to the Colorlines story, Perez and Barrera have been issued deportation orders, but an ICE spokesperson told Cololines that the agency has not issued detainers against them. Either way, they are still being detained and activists are trying to pressure the agency to release them before Thanksgiving.

By organizing around specific cases, mostly through online petitions and flooding ICE offices with phone calls, immigrant youth activists have managed to prevent many deportations of low priority, low risk immigrants such as Perez and Barrera—Dream Act eligible youth, people with family ties in the United States or long term residents without criminal records. These are the people that Obama has pledged and ICE has been directed not to deport.

Still, the vast majority of people being deported do not have criminal records: From October 2010 through July 2011, 81.2 percent of people ordered removed from the country had only violated immigration rules—illegal entry, overstaying visas or other administrative violations, according to the Transactional Records Access Clearinghouse at Syracuse University. That is 152,488 people. None of them had committed any other crimes.

Perez and Barrera have not gotten any press aside from the Colorlines report, as far as I can tell. But their action, along with a sit-in at the Alabama Statehouse last week and a rally at the historic 16th Street Baptist Church last night, the same church where four young black girls were killed in 1963 when white supremacists set off a bomb, is a powerful symbolic act in this time of renewed protest spirit in the United States. Risking arrest and, now, deportation, has a long history in this country of successfully demonstrating injustices to the public. The media needs to pay more attention to it.

[fblike style=”standard” showfaces=”true” verb=”recommend” font=”arial”]

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On persecution, human rights and immigration

Eleanor Roosevelt examines the Declaración Universal de Derechos del Hombre

This morning I was looking at the Universal Declaration of Human Rights, trying to find relevant sections for the final chapter of Amor and Exile (I’m taking stabs at the chapters out of order now … though we are getting close to finishing the manuscript). I was a bit disappointed that migration was not considered more of a human right, though the right to seek “asylum from persecution” is protected:

Article 14.

  • (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
  • (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

I tweeted: The Universal Declaration of Human Rights is weak on rights to movement between nations …. bummer bit.ly/vds3th.

The Universal Declaration of Human Rights displayed in Mauritius / duncan on flickr

And then I drafted this sentence: “When taken in the context of other universal human rights—the right to a livelihood, to security and to family—’persecution’ can include a host of justifications for seeking out life in the United States.”

I’m not sure I’m legally right about that, but I figured I’d check it out this week.

Then, tonight, via @redhotdesi I discovered, The @asylumist and his recent post on persecution, citing an article by law professor Scott Rempell:

Persecution is the core concept of asylum and refugee protection. Although thousands (if not tens of thousands) of decisions hinge on its meaning, a consistent definition is yet to emerge. Unmoored to any unified understanding of the term, immigration agencies and federal courts of appeals continue to articulate many different conceptions of persecution – conceptions that lack internal consistency and a coherent analytical foundation. Moreover, legal scholars have not attempted to aid adjudicators’ understanding of persecution because, by and large, scholars do not believe that a unified definition is possible. Meanwhile, the divergent definitions and understandings of persecution continue to produce unfair results for those seeking asylum, as asylum applicants receive disparate outcomes despite presenting claims based on similar situations. This Article challenges the conventional wisdom that persecution defies unified meaning. It provides a comprehensive assessment of persecution’s central underpinnings to isolate the three pillars that represent persecution’s fundamental core: harm, severity, and legitimacy. At the same time, this Article critiques a number of false dichotomies and shaky definitions that have troubled and obscured the persecution definition up to this point. Based on the analyzed core aspects of persecution and the elimination of erroneously included definitional components, this Article proposes that decision-makers define persecution as “the illegitimate infliction of sufficiently severe harm.” Because it is grounded in an examination of persecution’s true underpinnings, the proposed definition will aid courts in their review of asylum claims, and help administrators render consistent decisions. The stakes are simply too high, and the issue too prevalent, to let decades of abdication continue in any effort to form a unified definition.

Mostly I share this for its awesome serendipity. I am not a lawyer and I have not read the entire law review article yet. But I have a hunch that my definition of persecution is overly simplistic, optimistic and probably serves to detract from truly life threatening asylum cases as opposed to merely lifestyle or quality of life or life plan threatening immigration cases, though that line can be difficult to draw. But I do think that a case can and should be made for a universal right to migrate. Perhaps the United Nations is not the body to make such a case, but the United States certainly could try harder.

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George W. Bush on a path to citizenship for undocumented spouses

The remarkable thing about this 2001 letter from former President George W. Bush to Congress, is the numbers: 500,000 undocumented immigrants eligible for green cards with their U.S. citizen or permanent resident relatives, a majority of whom are spouses and 200,000 who missed the deadline because of Congressional inaction. That was 10 years ago:

The White House,
Washington, May 1, 2001
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.

Dear Mr. Speaker: I am a strong proponent of government
policies that recognize the importance of families and that
help to strengthen them. To the extent possible, I believe that
our immigration policies should reflect that philosophy. That
is why I support legislation to extend the window created under
section 245(i) of the Immigration and Nationality Act during
which qualified immigrants may obtain legal residence in the
United States without being forced to first leave the country
and their families for several years.

According to agency estimates, there are more than 500,000
undocumented immigrants in the country who are eligible to
become legal permanent residents, primarily because of their
family relationship with a citizen or legal permanent resident.
However, the law generally requires them to go back to their
home country to obtain a visa, and once they do so, they are
barred from returning to the United States for up to 10 years.
Many choose to risk remaining here illegally rather than to be
separated from their families for those many years. This issue
has been the subject of discussion in the Working Group that
Attorney General Ashcroft and Secretary of State Powell co-
chair with officials of the Mexican government, and should be
addressed to ensure a more orderly, legal, and humane migration
flow between our countries.

I encourage the Congress to consider whether there was
adequate time for persons eligible under section 245(i) to
apply for adjustment of status before the filing deadline
expired yesterday. Information indicates an estimated 200,000
were eligible to file but did not meet the deadline.
Preliminary reports suggest that many applicants were unable to
complete their paperwork in time, due in part to the fact that
the rules explaining how the provision would be applied were
not issued until late March. It remains in our national
interest to legitimize those resident immigrants, eligible for
legal status, and to welcome them as full participants of our
society. But we will only be able to do this if the path to
legalization encourages family reunification. For this reason,
I would support legislation that temporarily extends the
recently expired April 30, 2001, filing deadline, while
maintaining the requirement that the applicant was physically
present in the United States on December 21, 2000.

I look forward to working with you on this important
legislation.

Sincerely,
George Bush

Also remarkable: the civil language on strengthening the family, the use of “undocumented” rather than “illegal” and the assertion that undocumented husbands, wives, parents and children, are actually eligible for visas, not merely “deportable aliens.”

Did I mention that was (only) 10 years ago?