Immigration Q&A: Misconceptions and realities about immigration law
Without exception, the immigration debate involves some common questions and comments about how our system works. So the Post Independent put some of those recurring questions to experts who know this system best.
How many undocumented immigrants live here?
Nationwide estimates put the number of undocumented immigrants in the U.S. at 11 million. About 10 percent of Colorado’s population of 5.5 million people are immigrants, according to the American Immigration Council. And while it’s far more difficult to say how many of Garfield County’s immigrants are undocumented, the Pew Research Center puts the number of unauthorized immigrants in Colorado at 200,000.
The Migration Policy Institute, a Washington D.C.-based think thank, puts that number somewhat lower, at 163,000 undocumented immigrants in Colorado, with the vast majority originating from Mexico.
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More than 140,000 Coloradans who are U.S. citizens live with one or more undocumented family members, according to American Immigration Council. And more than 17,000 Coloradans are also recipients of Deferred Action for Childhood Arrivals, an Obama-era executive order protecting young people who were brought into the U.S. illegally as children. President Donald Trump has ordered a phase-out of the program.
Why don’t immigrants simply follow the process to come here legally?
“It’s extraordinarily hard to gain admission lawfully into the U.S., particularly if you’re from Mexico or Central America,” said Violeta Chapin, clinical professor of law at the University of Colorado-Boulder. In 1965 the Immigration and Nationality Act changed the way the U.S. handled immigration quotas, which had been viewed as a largely discriminatory system favoring white immigrants.
This new immigration act made the number of immigrants accepted from each country the same. Any given county could make up at most 7 percent of all the preference visas — family-based visas and employment-based visas — available in a year.
Certain countries and regions, though, have a lot more immigrants trying to get into the U.S. than others, particularly Mexico and Central America. Mexico hits its percentage very quickly, and now the waiting list from there is easily 20 years long, making it virtually impossible to come from Mexico legally, said Chapin.
Even for people who have family petitions pending, who have a family member in the U.S. lawfully, it takes 20 years for their priority date to become current, she said.
“It is not realistic for any person to wait for 20-plus years to immigrate,” said Sophia Clark, of the Colorado Immigrant Rights Coalition. “By then, their children are grown, the crisis they are seeking refuge from or the dream they are working to achieve has long passed.”
What about people already here?
As for the 11 million undocumented people already in the country, Clark says there simply is no way for them to become U.S. citizens at this time. “There is no line. There is no office. There is no application,” she said.
There is no path for citizenship for every person, said Glenwood Springs immigration attorney Jennifer Smith.
“Most humans do not want to leave his or her birth country permanently,” she said. “They come for protection, education, family and more with limited financial means. A foreign national has to become a lawful permanent resident before he or she can be on a path to citizenship. Every person has a different background, and some may have no way to seek lawful status or lawful permanent residency. There is no application to file for someone who wants to have lawful status. One cannot simply apply for residency or citizenship.”
The current immigration system is broken, and requires decades of paperwork and processing — if people qualify — before they can even get in line, said Smith. “The U.S. immigration laws are very complex and deal with thousands of various scenarios. No two cases are alike. And each little difference triggers a different immigration law and consequence or opportunity.”
Are undocumented immigrants criminals?
“It is not a crime to be undocumented,” Smith said. Rather, it is a violation of federal civil immigration law.
States cannot legislate enforcement of federal immigration law, though that’s not to say they haven’t tried. A famous example was in 2010 when Arizona tried to create a new state crime for “unlawful presence.” It was eventually shot down by the Supreme Court, mainly because federal authorities have the sole authority to enforce immigration law, said Chapin.
Of course, if federal immigration officers find an undocumented immigrant, he or she may be placed in removal proceedings. But that is still a civil hearing, and the civil penalty is removal, she said.
“The conflation of civil immigration law with criminal law enforcement started in the 1980s and intensified in the wave of anti-immigrant nationalism after 9/11, and has been growing since,” said Clark. “This is important because the conflation/confusion about civil immigration law has led to a popular belief that is inaccurate in just about every way and drives hate and division. It is also legal for individuals to work in the U.S. without authorization; work cannot be criminalized.”
Being undocumented is also not the same as entering the U.S. without permission, which is a federal crime, said Smith. “Under federal law, it is a crime for anyone to enter into the U.S. without the approval of an immigration officer.”
It’s also a common misconception that the majority of undocumented people are border crossers, but that hasn’t been true for many years, said Chapin. Most are now people who have overstayed their visa (and thus did not commit the criminal offense of entering illegally).
“Many foreign nationals … enter the country legally every day on valid work or travel visas, and end up overstaying for a variety of reasons,” said Smith. “But that’s not a violation of federal criminal law — it’s a civil violation that gets handled through civil immigration laws and proceedings.”
Are undocumented immigrants taking American jobs?
Pew Research Center also estimated in 2014 that undocumented immigrants make up under 5 percent of Colorado’s workforce. Garfield County estimates are that immigrants make up a quarter of the workforce here.
Studies of the most recent nationwide legalization of undocumented people, in 1986, showed that amnesty for 2.7 million undocumented people at that time didn’t hurt wages for American workers but actually increased them in some cases, according to the Center for American Progress, a Washington D.C.-based, progressive think tank.
A path to legal status leads to significant wage increases for undocumented workers, which in turn spurs the economy and leads to “significant increases in gross domestic product, tax revenue and jobs,” CAP reported. “More recent research on the effect of increases in immigration over the past few decades find little to no wage or employment effects … alleviating concerns about possible harm from future immigration,” the organization says.
However, there are significant labor demands in the U.S. for undocumented workers, particularly in industries where U.S. citizens don’t want to work, such as seasonal labor on farms where the work is extremely difficult, bent over for hours under the hot sun, said Chapin. Many of these industries are even marketing in Mexico to bring these workers into the U.S., and the current immigration system does not have enough work visas to provide those jobs, she said.
What is DACA, and why is it important?
In the U.S. immigration policy debate, an issue that’s been talked about for years is a legislative solution for young people who were brought into the U.S. illegally as children. Chapin said that among DACA-eligible young people, the median age at which they were brought into the U.S. was 6 years old.
A child who is brought to the U.S. as a child by parents who don’t have legal status will not have legal status either, said Smith. “If the kid doesn’t have any qualifying family to petition for him or her, then (he or she) has no path to legal status.”
Many teachers have recently come to CIRC asking what their DACA students could do once DACA has expired, said Clark. “They ask, ‘But isn’t there a way for them to become citizens?’
The current answer is no.
“DACA doesn’t give anyone a pathway to permanent residency,” she said. “And absent immigration reform, there is literally no way.”
First introduced in Congress in 2001, the Dream Act would be that legislative solution. Since then the Dream Act has been proposed no less than 16 times, and it has failed 16 times, said Chapin.
Quickly after President Donald Trump announced in September that he was rescinding DACA, Colorado Sens. Michael Bennet and Cory Gardner reintroduced the Dream Act in Congress. And it is still pending.
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