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Legalization of U.S. Unauthorized Residents: A Rule of Law or Access to Justice Issue?

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Advocates for legalization often argue that U.S. unauthorized residents have not so much broken the law, as the law has broken them. By this, they typically mean that the unauthorized would prefer to enter and remain legally, but U.S. law does not offer sufficient visas for the close family members of lawful permanent residents (LPRs) or for certain workers in short supply in the United States. This argument focuses the immigration debate on the most essential element of comprehensive reform -- not enforcement of the law or an earned legalization program, but fixing the underlying legal immigration system. In the meantime, U.S. immigration laws -- however imperfect, broken or punitive -- deserve respect. In fact, most immigrants strongly value the rule of law. This makes sense: many have left, even fled nations with substantial rule of law deficiencies. Moreover, many lack legal status not because they do not want to legalize or have no way to do so, but because they cannot access relief for which they might qualify. For large numbers of U.S. unauthorized residents, "illegality" is not a rule of law, but an access to justice issue.

The Deferred Action for Childhood Arrivals (DACA) program, which offers temporary status and work authorization to persons brought to the United States as children, has provided perhaps the starkest evidence on this point. In screening potential DACA applicants, non-profit legal immigration programs have reported a remarkable fact: roughly 20 to 25 percent of those screened are potentially eligible for legal status through non-DACA programs. This finding should not be surprising: after all, study after study has found that persons with legal representation are anywhere from three to 12 times more likely to prevail in their claims in removal proceedings than those without counsel. Legal representation allows many simply to identify and articulate a legal claim. Yet despite heroic efforts by charitable agencies, bar associations, and pro bono attorneys, there has never been sufficient legal representation -- a pre-condition to accessing justice -- for low-income immigrants. A program to screen and represent the unauthorized might well turn out to be a very effective "legalization" program.

Moreover, the U.S. immigration debate has too often ignored the unauthorized who are already "in line" for legal status. U.S. Citizenship and Immigration Services (USCIS) has approved the visa petitions of millions of unauthorized persons who nonetheless languish in long, often multi-year backlogs. At latest count, 4.4 million persons, 97 percent of whom have a qualifying family relationship to a U.S. citizen or LPR, are waiting for their visa priority dates to become current. Most of these persons have opted to remain (out of status) with their families in the United States. They have adhered to the law, but cannot "access" status in any reasonable time frame.

The New Immigrant Survey (NIS), a longitudinal study of new permanent residents and their children, has revealed that nearly 40 percent of LPRs in 2003 had earlier been "illegal." Like visa backlogs, the survey underscores the fluidity of legal status and the vast number of unauthorized immigrants on the path to LPR status and citizenship. For some, this process will take decades. Others will never be able to access justice.

These finding suggest that:

• a substantial percentage of the 11 million U.S. unauthorized residents might be eligible to regularize their status, but do not know it;
• a similar percentage have been found to be prima facie eligible for a visa; and
• an even higher percentage of LPRs were, at one point, without status.

They illustrate that lack of status is not solely a rule of law or public policy concern: it is an access to justice issue as well. The principle of access to justice has a long, distinguished history. The Magna Carta provides that "to no one will we refuse or delay, right or justice." Yet justice is delayed and denied in the U.S. immigration system -- sometimes for years, sometimes forever -- and this problem substantially contributes to the U.S. unauthorized population.