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Immigrant Families Caught Up In US Immigration Entanglements

Recent coverage about marriage rights got me to thinking today. I was on a two-hour trip to visit one of my immigration clients who has been detained without bond, far from home, for two months. He is a green card holder who came to this country as a child after his family won the diversity visa lottery. He eventually landed with the wrong crowd and got into some trouble. Nothing serious–no one was ever hurt, but he ended up with two convictions on his record. He never served any jail time as punishment. He was sentenced to probation only. This was all years ago.

To straighten out his life, he moved to another state, got a steady job, became active in his church, and fell in love and married an American girl. They had a baby just months ago. Earlier this spring, years after finishing his probation for his earlier crimes, Immigration and Customs Enforcement (ICE) woke his family up around 6am on a weekend to whisk my client away to jail, pending his removal from the country. What made him removable were those two old convictions on his record. What’s worse, those same two convictions made him ineligible for a bond. So he sits in jail during the fight to keep him here. In the mean time, his wife must raise their infant child alone, and make up somehow for her husband’s lost income. These Americans are suffering terribly–mentally, physically and financially.

Another client met his foreign national wife on the internet. This is hardly a surprising thing given that so many Americans are now using technology, from social media to highly-hyped dating websites, to find the right mate. What is surprising is that he first met her over two years ago, flew to her country and married her there, and he still can’t get a visa for her to travel to the United States to join him. In the most classic Catch-22 I have ever seen, government officials said that the couple was not acting like a couple. Government officials kept them apart for years and then claimed that because the couple is living apart, they could not prove the bona fides of their marriage.  If he didn’t have a small business to run, he’d leave the United States and join his wife abroad while she waits.  In the mean time, this client sends money to his wife abroad each month, communicates with her by phone regularly, and waits for a decision on his appeal.

There are valid policy arguments supporting our regulations allowing foreigners with criminal records to be deported, or preventing Americans from marrying for fraudulent reasons. But these policy arguments are not colored by a discussion of Americans’ rights to marry and dwell with whomever they choose. It is time to tip the balance in favor of Americans’ rights, who arguably suffer more than their foreign partners when they are separated from a spouse or parent. Moreover, since in each of these cases an American’s rights are implicated, a higher level of due process should prevail.  If life, liberty and the pursuit of happiness mean anything, these Americans deserve the full force of our system of justice to seek redress. Administrative due process, such as that provided in immigration courts, is insufficient for vetting the reasonableness of government action that deprives an American of the one thing each holds most dear, his or her chosen spouse.  Isn’t it time we revised our laws to protect the rights of these tormented Americans?  Can’t we all agree, even in these divisive times, that American spouses and children should not be separated without the same due process we afford common criminals?