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Cain W. Oulahan

Abstract

In the mid 1990’s, Congress passed a series of punitive immigration laws designed to ramp up enforcement and deter illegal immigration. Among these measures are provisions know as unlawful presence bars, which prohibit immigrant visa applicants who have been unlawfully present in the United States for certain periods of time from obtaining an immigrant visa for up to ten years or more. These bars frequently result in the protracted separation of undocumented applicants from their U.S. citizen or lawful permanent resident family members. After more than ten years since the passage of the unlawful presence bars, it is now appropriate to look closely at their impact and examine whether they constitute sound public policy. This Comment argues that they do not. Furthermore, it explains how the system puts families through unnecessary and unjustifiable hardship by imposing a punishment that is disproportionate to the seriousness of the immigration violation. This Comment points to the lack of evidence that the unlawful presence bars significantly deter illegal immigration, and the fact that they tear families apart or force them to move abroad. For these reasons, this Comment recommends that Congress make sensible changes that will promote family unity while imposing penalties that are more proportionate to the seriousness of being unlawfully present in the United States. Specifically, Congress should eliminate the unlawful presence bars while still requiring undocumented applicants for immigrant visas to process at a consulate in their home country. This would reduce the periods of family separation while maintaining a penalty for entering the country without permission. Concomitantly, Congress should pass a new law that would allow applicants who were minors when they entered the United States, and thus had no choice in the matter, to apply for lawful permanent residence without leaving the United States.

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