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A Better Fate for Split Families : INS, Tangled in Rules, Misses the Purpose of Amnesty

November 05, 1987|DORIS M. MEISSNER | Doris M. Meissner is a senior associate at the Carnegie Endowment for International Peace in Washington.

"Family fairness" is what the Reagan Administration calls its policy for immigration amnesty decisions where some members of a family are eligible and others are not.

In such cases ("family" meaning spouses, parents and minor children), those members who are ineligible will not be granted legal status, thereby remaining subject to deportation. Exceptions are to be allowed for illegal minor children whose parents are both eligible, but not the reverse--relief is not available to ineligible parents of legally resident or citizen children. "Certain compelling or humanitarian factors" may allow exceptions for spouses, but not if the "only claim to . . . relief is by virtue of the marriage itself."

The policy, announced in congressional testimony last month, responds to a problem that has been vexing the amnesty program ever since it began in May. The amnesty application form requires information on all immediate family members, including those who are ineligible for amnesty and, therefore, deportable. Although the federal statute authorizing the program prohibits the use of information provided on amnesty applications for deportation purposes, many believe they will put their loved ones at risk.

No one knows how many potential applicants fit the split-eligibility category, but it is reasonable to guess that the number is significant, based on what we know about migration patterns: Typically, one family member comes to the United States to find work, often intending to be away only temporarily, but after time sends for family members. This was happening long before and after the 1982 cutoff date for amnesty.

The dilemma that this has brought is both legal and emotional. Critics of the Administration's policy argue that there would be a broader base of applicants if immediate relatives of amnesty applicants received sympathetic treatment. But the Immigration and Naturalization Service on its own can grant amnesty only to eligible aliens. The dispute, therefore, is whether the attorney general should exercise his discretionary authority to stay the deportation of immediate family members for humanitarian reasons. Immediate family members, in any case, will qualify for immigrant status in 18 months, when the original applicant obtains permanent resident status.

Such discretion has been available to local immigration officials and sympathetically applied in family cases for years. It is variously known as deferred action, indefinite voluntary departure or deferred deportation. For the current legalization effort, the Administration has now arrived at a tighter regimen, but it has not yet spelled out the humanitarian factors that must exist in addition to the family relationship to obtain discretionary relief.

The immigration service's rationale for the tighter policy goes so far as to note that the aliens had already separated their families by leaving them behind, the inference being that separating them again would be no different. Furthermore, the INS argues, leniency could act as a magnet for others to enter illegally to marry a qualified applicant and obtain benefits.

The Administration is basing this on the proposition that fairness in the legalization program's policy must follow the "same concepts of fairness that underlie the lawful immigration system." In that system, immigrants file petitions that establish visa eligibility for their spouses or children to come to the United States. These family members must wait their turn, about 18 months at present for most countries. Due to backlogs, the wait is much longer for a few countries, with Mexico, at about 10 years, having the longest. As a result, the overwhelming majority of visa-eligible relatives of Mexican immigrants are already in the United States when their eligibility date arrives, returning to Mexico solely to pick up their immigrant visas. If the concepts of the "lawful immigration system" were applied to legalization, the waiting period for families could only increase, at least for Mexican cases, which are now about 70% of the legalizing population.

But the flaw in the Administration position is more fundamental than just the folly of its practical effect. The very essence of any amnesty is the admission that the lawful system has not worked and must be abandoned for a period. The legalization program is a unique act of forgiveness intended to wipe the slate clean in the belief that order can be restored through improved immigration controls in the future. The program should be administered with that as the guiding principle.

The pity is that immediate relatives are probably not at much actual risk at all. INS will not move to deport them unless they are discovered in employment checks, and local officials are likely to make generous decisions because they do not relish this fight. But split-eligibility families believe that they're at risk.

This is family fairness? No, this is a preseason reminder that the spirit of Ebenezer Scrooge is alive and well.

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