Bringing them out of the shadows: Updating the INA’s Registry provision to create a pathway to citizenship By Elton Darby

Bringing them out of the shadows: Updating the INA’s Registry provision to create a pathway to citizenship

By

Elton Darby

The campaign trail to the 2016 U.S. presidential election has been unique in a few ways, intense twitter wars and the popularity of non-establishment candidates to name a few.[1] Despite these colorful novelties, how to treat the country’s millions of undocumented immigrants has been, and continues to be, a pivotal issue amongst the candidates. Republican candidates, Jeb Bush and Donald J. Trump, promote “border security” and “defend[ing] the laws and Constitution of the United States” against undocumented immigrants.[2] Democrats, on the other hand, plead to “bring the undocumented out of the shadows” by providing a pathway to citizenship.[3] To many democrats and pro-immigrant groups, a “pathway to citizenship” is seen as the most humane method to treat the undocumented immigrants in the United States. [4] But how would it work in practice?  The Clinton and Sanders campaigns have made their support for a pathway clear, but neither has provided details of how the pathway would be paved. Deep within the bowels of America’s law libraries, however, a solution hides within an infamous creature: The Immigration and Nationality Act (INA). Yes, the ominous, telephone-book sized statute that provides a wide range of fates: from permission to remain in the U.S. on one end, and removal to an ancestral homeland on another. The INA already provides a pathway, it only needs some fresh pavement: Registry.[5] In this blog post, I examine the feasibility of updating the INA’s Registry provision to provide a simple, streamlined pathway to citizenship for undocumented immigrants.

Registry, along with cancellation of removal, are the traditional forms of relief to removal available to non-Lawful Permanent Resident (LPR) aliens. Registry deems an alien lawfully admitted to the United States as long she proves:(1) continuous residence since entry; (2) good moral character; and (3) is not a terrorist, Nazi persecutor, or otherwise inadmissible.[6] The current Registry date is January 1, 1972.[7] In other words, an alien who entered the U.S. before 1972 and avoided criminal convictions may be able to obtain lawful permanent residence status through Registry. LPRs may apply for citizenship after five years of U.S. residence.[8] The justification behind Registry, as explained by Professor Richard Boswell, was the realization that a class of aliens had resided in the U.S. long enough to start families and become “interwoven into the community.”[9] Registry can thus be understood as “statute of limitations to removal for a narrowly defined group.”[10] Despite the periodic advance of the registration date, Registry has always been tailored to a narrowly defined group. At its peak in fiscal year 1966, 2,887 petitions for relief by Registry were granted.[11] By 2013, the number of beneficiaries had dropped to 104.[12]

Although Registry itself has never been expanded, Congress has attempted to create new pathways. In 1986, Congress enacted new legislation, the Immigration Reform and Control Act (IRCA), that granted amnesty and a pathway to citizenship for undocumented immigrants continuously present in the country since 1982.[13] IRCA favored agricultural workers over immigrants in other fields.[14] For non-agricultural workers, the IRCA contained many similarities to Registry, such as a continuous residence requirement and bars to amnesty if the alien had committed certain crimes.[15] IRCA’s enactment was accompanied by major downfalls. Those aliens who entered legally in any way were ineligible for the program.[16] First, the alien had to prove continuous unlawful residence in the United States since 1982.[17] Second, immediate relatives were not eligible to apply for relief. [18] The exclusion of immediate relatives from eligibility meant removal for some family members and amnesty for others. ICRA nevertheless resulted in the receipt of LPR status by 2.7 million undocumented immigrants.[19]

Not unlike the past, the debate over immigration policy continues to rage across the country.[20] Some presidential candidates have highlighted crimes committed by undocumented immigrants as a vehicle to support mass deportations. The solution, however, need not be so dramatic. American society needs nothing less than the institution of costly, wide spread roundup actions aimed at a particular demographic. The potential for catastrophic monetary and civil rights costs would be enormous.[21] A much less divisive method to treat undocumented immigrants is an update of the Registry provision.  Rooted in historical precedent, updating the Registry date to a reasonable time would provide a simple, cost-effective method to bring undocumented immigrants out of the shadows. The Registry date should be updated to reflect a time period when a continuous resident undocumented alien would naturally have developed deep ties to the U.S.[22] The current date requires forty-three years of continuous residence to apply for Registry. Substantial ties can be made to a country in far less time. If the date were updated to, for example, 1995, undocumented immigrants that entered twenty years ago and produce a record of lawful continuous residence since that time would receive an opportunity to obtain LPR status.[23] Changes to the Registry date would undoubtedly be controversial, as an expansion would immediately a defense to removal and eligibility to apply for LPR status.[24] Registry, however, is not without a key benefit to interior enforcement: the separation of criminal aliens from those living lawfully since entry. Currently, undocumented immigrants do not have much benefit to confer with the police: placement in a removal proceeding could mean a bar to re-entry for years. If Registry were updated, not only would immigration enforcement authorities have the ability to exhaust more resources on criminal aliens, but cooperation between well-behaved undocumented immigrants and enforcement authorities would improve.

Admittedly, Registry is a once-in-a-generation solution to the problem of illegal immigration, as it rewards illegal entry. Any update to the Registry date would likely need to be followed by a ramp-up in border security and enforcement. Nevertheless, history teaches us that, every so often, the immigration system breaks down to a point where a wide-reaching solution is needed. An update of the INA’s Registry provision would provide that grand solution at low cost to government resources and human rights.

[1] See e.g., Alan He, Bush and Rubio campaigns jab at each other over fundraising, CBS News, http://www.cbsnews.com/news/bush-and-rubio-campaigns-jab-at-each-other-over-fundraising/ (last visited Oct. 18, 2015) ; See Susan Milligan, The Year of the Underdog?, US News & World Report, http://www.usnews.com/news/the-report/articles/2015/08/28/2016-may-be-the-year-of-the-underdog-with-trump-sanders-and-carson (last visited Oct. 18, 2015).

[2] Jeb 2016, “Border Security” https://jeb2016.com/border-security/?lang=en (last visited Oct. 18, 2015). ; Donald J. Trump for President, “Immigration Reform” https://www.donaldjtrump.com/positions/immigration-reform (last visited Oct. 18, 2015).

[3] Bernie 2016, “A Fair and Humane Immigration Policy” https://berniesanders.com/issues/fair-and-humane-immigration-policy/ (last visited Oct. 18, 2015). ; Hilary for America, https://www.hillaryclinton.com/issues/immigration-reform/ (last visited Oct. 18, 2015).

[4] See Jeffery M. Jones, In U.S., 65% Favor Path to Citizenship for Illegal Immigrants, Gallup, http://www.gallup.com/poll/184577/favor-path-citizenship-illegal-immigrants.aspx (last visited Oct. 18, 2015).

[5] 8 U.S.C. § 1259 (2015).

[6] Id.

[7] Id.

[8] 8 U.S.C. § 1427 (2015).

[9] Richard A. Boswell, Crafting an Amnesty with Traditional Tools: Registration and Cancelation, 47 Harv. J. on Legis., 175, 183 (2010).

[10] Id.

[11] Immigration & Naturalization Serv., U.S. Dep’t of Justice, Annual Report of the Immigration and Naturalization Service 1966-67, 8, available at http://babel.hathitrust.org/cgi/pt?id=pst.000067698356;view=1up;seq=16

[12] 2013 Yearbook of Immigration Statistics, Office of Immigration Statistics, Dept. of Homeland Sec., 24 tbl. 7 (2013) available at http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf

[13] See IRCA, Pub L. 99-603 (1986) (codified as 8 U.S.C. 1160(a), 8 U.S.C. 1255a(a) (2015))

[14] Boswell, supra note 9, at 196.

[15] 8 U.S.C. § 1255a(a) (2015).

[16] Boswell, supra note 9, at 197.

[17] 8 U.S.C. § 1255a(a)(2)(A) (2015) (“the alien must establish that he entered the United States before January 1, 1982… and that he has resided continuously… in an unlawful status since such date.”)

[18] Betsy Cooper & Kevin O’Neil, Lessons from the Immigration Reform and Control Act of 1986, Migration Policy Institute, August 2005, No. 3, at 3 http://www.migrationpolicy.org/research/lessons-immigration-reform-and-control-act-1986

[19] Id.

[20] See e.g., Emmett Berg, Felon in immigration furor pleads not guilty to San Francisco shooting, Reuters, July 8, 2015. http://www.reuters.com/article/2015/07/08/us-usa-california-shooting-idUSKCN0PH1Y620150708 (last visited Oct. 18, 2015). (San Francisco immigration debate rages as convicted felon previously removed five times charged with murder).

[21] Boswell, supra note 9, at n. 136 (1950’s mass deportations had heavy costs and civil rights violations).

[22] See Boswell, supra note 9, at 206 (Registry date should be advanced to encompass a large portion of the undocumented population.)

[23] Boswell, supra note 9, at 205 (arguing for a Registry date five to seven years preceding a potential enactment).

[24] Margaret H. Taylor, What Happened to Non-LPR Cancellation? Rationalizing Immigration Enforcement by Restoring Durable Relief from Removal, 30 J.L. & Pol. 527, 529 (updating the Registry date “is politically infeasible and perhaps unwise”).

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