The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad

Abstract

The immigration system in the United States is broken and needs to be fixed. Despite this long-standing political reality, there remains widespread disagreement regarding solutions to many of the problems involved. The immigration issues that tend to garner the most attention include border security, high-profile workplace raids, guest worker programs, and the estimated 12 million undocumented people living in the U.S. These are extremely important issues that Congress must address in any attempt to fix the broken immigration system. Although these issues are the most widely recognized, there is a lesser-known issue that is just as important and profoundly impacts the lives of immigrants and U.S. citizens alike: the lengthy or permanent separation that many families are forced to endure when applying for an immigrant visa at a U.S. consulate abroad. This problem arose with the creation by Congress in 1996 of what are known as the unlawful presence bars to admission.

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. This Comment 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 the immigration violation.