"Minor" Travel? Think Again!
One of the foundations of comprehensive immigration reform is fixing a problem that Congress created in 1996 - the creation of the 3 year, 10 year, and permanent bars. The bars have created a "Catch 22" where thousands of foreign nationals are ELIGIBLE for green cards but can't obtain the card in the USA due to unlawful presence and can't go home to obtain the card because our government won't let them back in. So they stay here and stay illegal. The U.S. Consulate in CD Juarez, Mexico and our Federal Courts have now made the problem worse by declaring that the permanent bar can apply to children!!
Basically, if a person is "unlawfully present" in the USA for more than 180 days and then leaves, he or she can't come back for 3 years. If a person is "unlawfully present" in the USA for more than one year and then leaves, he or she can't come back for 10 years. These two provisions are contained in an immigration section called § 212(a)(9)(B). This seciton wisely excludes minors in the definition of "unlawful presence," because in the vast majority of child cases, chidren are in the USA illegally because of their parent(s). So if a kid was brought to the USA illegally but leaves before turning 18, the kid does not have any "unlawful presence" and can seek a green card (if otherwise eligible of course). An adult would have to suffer the consequences.
Here's the problem. If a person is unlawfully present in the USA for more than one year, then leaves, then re-enters or attempts to re-enter the USA without authrization, the person is PERMANENTLY ineligible for admission into the USA. This law is contained in an immigration section called § 212(a)(9)(C). Here's the problem: Section (C) has NO DEFINITION of "unlawful presence." Historically, the U.S. Consulate in CD Juarez has applied the definition of "unlawful presence" contained in Section (B) to Section (C), including the minor exception. A few months ago, the consulate said NO MORE! So, if a child was brought to the USA illegally by his or her parents, then is shuffled back home (e.g., a funeral or to visit a sick relative), and then is brought back to the USA a second time illegally, the CHILD now has a PERMANENT BAR. Which means that even if a child found a path to permanent residency, the green card would be denied.
The consulate's interpretation has been backed up by federal appeals courts in California and Louisiana. Message to Children Brought Here Illegally to USA: -- it is no longer wise to send you out of the USA to gain legalization if you left the USA for one day during your childhood. You too will be denied and face permanent exile. Right now, if Congress simply repealed the 3,10 and permanent bars, thousands, if not millions, could emerge from the shadows and leave the USA to pursue permenent residency. Our laws should not encourage people to stay here illegally.
There is no such thing as "minor" travel. We need reform.
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