We Don’t Need to Be Police Inspector Javert: Compassion and Rule of Law in Immigration

A common refrain I hear from people who support deportation of immigrants without status is that they should have “done it the right way” like the speaker’s ancestors had done. I always find this amusing because unless your ancestor came here after 1924, “doing it the right way” generally meant that you bought a ticket to come to the US. There was no requirement to obtain permission to enter the U.S. We live, of course, in a constitutional republic, and Congress has since put limits on immigration and respect for the Rule of Law means that we enforce these laws.

But does respecting the Rule of Law mean that even immigrants without lawful status who have lived peacefully in the U.S. for decades must be deported? Any one who as read Victor Hugo’s Les Misérables (or has seen the Broadway musical( knows that the answer is no. In that book, a common thief reforms his life, becomes an upstanding citizen and businessman who operates a factory that employs hundreds. Sadly, he is zealously pursued by Police Inspector Javert, leading to tragedy for both the hero and Javert.

Must we be like Police Inspector Javert in Les Misérables and heartlessly deport everyone without status? We do, after all, have statutes of limitation for all but the most serious of crimes. Should there not be similar statutes of limitations for immigrations who have been settled for years in the United States?

In fact, until 1996, there was essentially such a statute of limitations that lead to many immigrants being allowed to remain in the United States. This history offers a lesson on how we can balance the Rule of Law and compassion.

There were, in fact, two different laws that allowed longstanding immigrants to avoid deportation, become permanent residents, and ultimately U.S Citizens.

First, until 1996, immigrants who had been in the Unites States for at least seven years could get legal status under a process known as “suspension of deportation” if they were of good moral character (which focused on criminal convictions) and could show that deportation would cause them or their spouse, parent or child, “extreme hardship.” The “extreme hardship” standard was a tough one to meet, but many immigrants who had developed strong ties to the community while in the U.S. often met this standard. As a young lawyer I handled several of these cases and was often successful, including a case involving two teenagers who had been brought by their mother into the U.S. as young children.

Unfortunately, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which made the standard nearly impossible to meet. The required time was increased to ten years and extreme hardship to the immigrant or even her family was not enough. To avoid deportation, the immigrant could avoid deportation only if deportation would result in “exceptional and extremely unusual hardship to the alien's spouse, parent, or child” and the spouse, parent or child, was “a citizen of the United States or an alien lawfully admitted for permanent residence.” The “exceptional and extremely usual hardship” test is rarely met—mere family separation is not enough. As one immigration lawyer explained, “a case where the applicant was the sole financial provider, lacked family in her home country, and didn’t speak her home country’s language barely made the cut for a finding of hardship to her children.”

Second, the immigration laws have long had a very archaic form of relief known as Registry. Under Registry, immigrants who had entered the U.S. prior to the Registry date could change their status to that of a permanent resident if they maintained continuous residence in the U.S. since entry, were a person of good moral character, were not ineligible for entry into the U.S. or citizenship, and merited the favorable exercise of discretion. This relief remains in the law. The problem is that the Registry date is 1972, which has not been changed since 1986. Now, only a tiny number of immigrants would be eligible for Registry. As the American Immigration Lawyers Association notes, in the years following the change in date to 1972, a large number of immigrants were able to benefit from this relief, but the number has dwindled in the following decades:

Over the course of just a few years after the registry date was last advanced in 1986, tens of thousands of noncitizens became LPRs under the registry provision. According to government data, 58,914 individuals benefitted from registry between Fiscal Year (FY) 1985 and FY 1989. But as the registry date receded further into the past, fewer and fewer people were eligible to apply. Only 11,191 non-citizens became LPRs through registry in the 1990s. That number fell to 2,319 in the 2000s and 911 in the 2010s.

Updating the Registry date (as was done in the past could mean that millions would be eligible for relief:

Were Congress to again advance the registry date, millions of non-citizens who are long-term residents of the United States could potentially apply for LPR status. According to the Department of Homeland Security, 47 percent of undocumented immigrants in the United States as of 2018 (5.4 million people) had arrived before 2000. Another 37 percent (4.2 million) had arrived between 2000 and 2009. Depending on how far Congress chose to advance the registry date, a great many of these long-term undocumented residents of the United States might qualify for registry. For instance, the Center for American Progress estimates that updating the registry date from 1972 to 2010 would make 6.8 million undocumented immigrants potentially eligible to apply for LPR status.

So what does this history mean? It means that for much of our immigration history, Congress recognized the need to offer some relief to immigrants that had been in the United States for a long time. Adherence to the Rule of Law was balanced by compassion. This was not a general amnesty, but was instead an individualized determination that impose very difficult standards to meet. Congress recognized that just as criminal laws needed to have statutes of limitation, there needed to be some safety valve to long-term immigrants in the U.S. that had become valuable parts of our community. And Congress never viewed these safety valves—with their stringent standards—as inconsistent with the Rule of Law.

Obviously most immigration advocates would decry a simple return to the pre-1996 law as inadequate. They would be right. there are good reasons to have a more general approach to long-term immigrants. But doing so would benefits a great number of immigrants who have established lives in our community.

I am also not naive. The Trump Administrations is too committed to its cruel “mass deportation” efforts to even entertain the notion of bringing back suspension of deportation or updating the Registry date. Indeed cruelty seems to be the point. But I am hopeful that after the cruelty and trauma we are now seeing, Congress might consider bring back these safety valves.

Indeed, the American people might already be there. While Americans are broadly supportive of deportations, the latest Pew poll found support dropped significantly for immigrants who would most likely benefit from these safety valves: those who have been in the US for over 4 years, have a job, have US citizen children or spouses, or who came as children. And the Gallup poll found strong support (70%) for “Allowing immigrants living in the U.S. illegally the chance to become U.S. citizens if they meet certain requirements over a period of time.” Gallup found even stronger support (81%) for “Allowing immigrants, who were brought to the U.S. illegally as children, the chance to become U.S. citizens if they meet certain requirements over a period of time.”

As we have learned in the first few months of the Trump Administration, respect for the Rule of Law is vitally important. This respect must include respect for the immigration laws as well. But as evidenced by criminal statutes of limitation and the historic use of suspension of deportation and Registry, respect for the Rule of Law does not require unthinking cruelty that does not take account of human hardship. It does not require that we become like Police Inspector Javert in Les Misérables.