Immigration Q&A: Misconceptions and realities about immigration law
November 12, 2017
GLENWOOD SPRINGS — President Donald Trump announced in September that he is ending temporary deportation protections granted by the Obama administration to young immigrants known as "Dreamers" who were illegally brought into the United States and often have known no other home. But he gave Congress until March to come up with a fix and promised top Democratic leaders he would sign legislation protecting them, so long as he wins billions for border security.
The Congressional Hispanic Caucus and Senate Democrats are demanding the immigration issue be addressed as soon as possible and won't vote for any spending bill that fails to include a solution. That could doom the spending bill, as Republicans need Democratic votes to pass the measure. An early December government shutdown is a real possibility if this divided Congress can't agree on help for young immigrants, among a slew of other issues.
Without exception, the immigration debate involves some common questions about how our system works. Here's how local experts who know the system best answered some of those recurring questions.
Q: How many undocumented immigrants live here?
“It is not realistic for any person to wait for 20-plus years to immigrate. By then, their children are grown, the crisis they are seeking refuge from or the dream they are working to achieve has long passed.”Sophia ClarkMember, Colorado Immigrant Rights Coalition
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A: Nationwide estimates put the number of undocumented immigrants in the United States at 11 million. About 10 percent of Colorado's population of 5.5 million people are immigrants, according to the American Immigration Council.
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 tank, puts that number somewhat lower, at 163,000 undocumented immigrants in Colorado, with the vast majority originating from Mexico.
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 United States illegally as children. As previously stated, 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 United States 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 United States 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, Chapin said.
Even for people who have family petitions pending, who have a family member in the United States 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 said 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, Smith said.
"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," she said.
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, Chapin said.
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," Clark said. "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 United States without permission, which is a federal crime, Smith said.
"Under federal law, it is a crime for anyone to enter into the U.S. without the approval of an immigration officer," she said.
It's also a common misconception that the majority of undocumented people are border crossers, but that hasn't been true for many years, Chapin said. 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," Smith said. "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 less than 5 percent of Colorado's workforce.
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," Center for American Progress reported. "More recent research on the effect of increases in immigration over the past few decades finds little to no wage or employment effects … alleviating concerns about possible harm from future immigration."
However, there are significant labor demands in the United States 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, Chapin said. Many of these industries are even marketing in Mexico to bring these workers into the United States, 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 United States illegally as children. Chapin said that among DACA-eligible young people, the median age at which they were brought into the country was 6 years old.
A child who is brought to the United States as a child by parents who don't have legal status will not have legal status, either, Smith said.
"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," she said.
Many teachers have recently come to the Colorado Immigrant Rights Coalition asking what their DACA students could do once DACA has expired, Clark said.
"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 fewer than 16 times, and it has failed 16 times, Chapin said.
Quickly after 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.
Associated Press writer Andrew Taylor contributed to this article.