Law and Contemporary Problems · 2014 · 10 citations · 0 references
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I INTRODUCTION In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), (1) focusing immigration law and policy on greater enforcement and centering the enforcement system around departures, in an attempt deter immigrants from overstaying their visas. (2) One major enforcement tool instituted by IIRIRA was the creation of three- and ten-year (3ULP) bars, which are triggered when an out-of-status alien departs the United States. (4) Since the law went into effect in 1997, the creation of these bars has had important consequences not only for immigrants, but also for their communities and the United States as a whole. Significantly, many of these effects are directly contrary Congress's intended purpose in enacting IIRIRA, as well as longstanding national immigration policy generally. Many of these harmful effects are fueled by the ULP bars' significant incentives immigrants extend, instead of shorten, their length of in the United States. Extended stays consign these immigrants an undocumented underclass, validating common but largely incorrect stereotypes. Negative community stereotypes then influence legislators and others, fueling harsher immigration legislation and policy (like the ULP bars themselves), thus perpetuating a cycle of harmful stereotyping and stricter enforcement schemes. The bars also contribute widespread economic challenges and weighty detrimental impacts on families of both immigrants and citizens. Of course, a harsher approach immigration legislation, like that embodied in IIRIRA, has many supporters. For example, some argue that more punitive immigration legislation is necessary to provide an incentive for prospective immigrants play by the rules and resist the temptation flout immigration law en route a green card. (5) These persons often object immigrants who cut in line, rather than waiting and applying through the consular process abroad. (6) There is much legitimate discussion on these issues, but the general immigration debate is well beyond the scope of this note. The immediate point is that regardless of one's political leanings, the evidence indicates that the ULP bars fall utterly short of achieving their purpose and are also harmful American citizens (in addition immigrants). Even supporters of harsher immigration laws are not pleased with the ULP bars, and for largely the same fundamental reason: The bars are unable reach immigrants who evade them by simply remaining inside the United States. (7) This massive loophole incentivizes longer stays and creates significant social, economic, and familial harms Americans generally, without deterring illegal immigration. That the ULP bars do not deter immigration appears well accepted by most; for some, the correct response is advocate for stricter enforcement measures, while others push for a softer approach. Either way, the bars are clearly ineffective. (8) No matter one's perspective on immigration policy, the ULP bars fail achieve their desired goals, contravene long-standing national immigration policy, and perpetuate or even worsen these unintended and problematic outcomes. It is therefore imperative that Congress repeal the ULP bars and replace them with a legislative scheme that more effectively achieves its policy goals. A. Legal Background Under IIRIRA, undocumented immigrants are barred from reentry into the United States for three years if they accrue more than 180 days but less than one year of unlawful presence and voluntarily depart the United States prior the commencement of removal proceedings. (9) Additionally, undocumented immigrants accruing more than one year of unlawful presence are inadmissible for ten years after the date of departure. (10) In both cases, the unlawful presence must be accumulated in one stay in the United States, which resets any time the immigrant leaves the country. …