Recently, a federal judge in Maryland issued a preliminary injunction that blocks federal immigration officials in the state from arresting and detaining people who have come forward—at the invitation of the government—to begin the process of obtaining a green card based upon their marriage to a U.S. citizen. Essentially, immigration officials over the past three years have been using a process that was created by regulation to facilitate certain undocumented immigrants’ ability to obtain lawful status to instead entrap them into being arrested and deported. The legal question at the heart of the case is whether or not this decision is arbitrary and capricious and, thus, in violation of the Administrative Procedure Act. Even if that question is ultimately resolved against the plaintiffs in this case, the government’s actions illustrate perfectly why even legally defensible enforcement actions can degrade respect for the rule of law.
How the current provisional waiver process promotes compliance with the law
Under U.S. immigration law, a person who was never admitted or paroled into the country cannot, from within the country, adjust their status to that of a green card holder by virtue of their marriage to a U.S. citizen. Instead, that person must leave the country to obtain an immigrant visa at a U.S. embassy or consulate abroad and then reenter the United States as a lawful permanent resident. But for people who have accrued unlawful presence in the country or who have an outstanding order of removal, leaving the country to go through consular processing abroad triggers one or more lengthy bars on reentering the country.
Federal law allows people with a prior removal order to request permission to reapply for admission; it also allows people to obtain a waiver of the three- or 10-year unlawful presence bars to re-entry by demonstrating that a U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship in the absence of a waiver. But there’s a catch: Historically, people have been unable to begin the process of requesting those waivers prior to departing the country and, thus, triggering the bars on reentry. As a result, many people—hundreds of thousands or more—have long decided not to risk being separated from their families and communities by going through this process and instead have remained in the country without lawful status.
In 2013, U.S. Citizenship and Immigration Services (USCIS) took an important step to help people avail themselves of the waiver process—which has long existed in U.S. law—and transition from unlawful status to permanent residence. USCIS published a final rule creating a provisional waiver process so that people who might be eligible for waivers that they would ultimately request outside of the country could obtain provisional approval while still in the country, and thus before they triggered the bar on reentry. In 2016, USCIS expanded the provisional waiver process to include all people eligible under the statute to obtain an immigrant visa and a waiver of the unlawful presence bar—essentially making the policy more fully represent the expansiveness of the law itself.
The provisional waiver policy, which the Trump administration has not formally sought to overturn, is a perfect illustration of how the United States can promote the enforcement of immigration laws by creating sensible on-ramps to compliance—entirely within the confines of existing law—for people living in the United States without lawful status. It also challenges the notion that immigration hard-liners have long championed: that enforcement of immigration laws can and should only be pursued through maximum punishment—banishment from the country—whenever possible. This deportation-only approach is reflected in the Trump administration’s actions over the past three years to undermine the provisional waiver process by using it as a tool to entice people to come forward and then to arrest, detain, and ultimately deport them from the country.
The Trump administration’s ineffective, counterproductive, and cruel response
The idea that the U.S. government would carry out this kind of bait and switch out of a preference for deporting the spouses of U.S. citizens rather than permitting them to cure their unlawful status would strike many people as gratuitously cruel. But more generally, it is counterproductive. Doing so only encourages more undocumented immigrants in the United States today to not come forward and avail themselves of the limited provisions that exist to obtain lawful status. This same self-defeating approach was evidenced in a recent Board of Immigration Appeals (BIA) decision that authorized the deportation of people who are eligible for, and deserving of, a U visa by virtue of their willingness to help law enforcement in the investigation or prosecution of a criminal offense. Rather than simultaneously promoting cooperation with law enforcement and compliance with U.S. immigration law, the BIA decision will disincentivize undocumented immigrants—especially those who are themselves victims of serious crime—from working with law enforcement to report crimes and enhance public safety for everyone. What’s more, it will leave them undocumented and particularly vulnerable to continued abuse in the future.
Restoring the rule of law in the U.S. immigration system ultimately requires Congress to rewrite the rules and build a system that is fair, humane, and workable. The system must be designed to meet the country’s realistic needs so that it can be followed and appropriately enforced. But apart from these much-needed legislative reforms, smart, tailored administrative actions such as the provisional waiver process can nevertheless be used to leverage opportunities to promote fair and just outcomes—even within the substantial constraints of the existing legal system.
Tom Jawetz is the vice president of Immigration Policy at the Center for American Progress.