11/07/2014 06:20 pm ET Updated Jan 07, 2015

Immigration Actions: The Law of Unintended Consequences

The consensus among Americans is that "we are a nation of immigrants." However, when it comes to efforts to resolve our dysfunctional immigration system in the U.S. Congress, this consensus fails. What is wrong and how did we get in this mess?

It is generally agreed that there are between 11-12 million persons in the U.S. without proper immigration documentation. A disproportionate number of these undocumented workers are blue collar workers who came to the U.S. seeking employment. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) was passed in an attempt to control the flow of undocumented people into the U.S. Ironically, IIRAIRA created a permanent underclass of undocumented workers trapped in U.S.

IIRAIRA created a penalty for "unlawful presence? That requires persons unlawfully present for more than one year to leave the U.S. for 10 years. The rationale behind this provision was to intimidate unlawfully present people into leaving the U.S. in a timely fashion so as not to be barred from re-entry into the U.S. for a decade. However, the reverse result occurred!

Since a 10 year exile is not an attractive option, many unlawfully present people chose to stay in the U.S. in order to continue to live and work. Such people were precluded from regularizing their status by being sponsored for permanent residence through their jobs because another requirement entailed leaving the U.S. to appear for a visa interview, triggering the dreaded 10 year exile penalty. This is a prime example of the law of unintended consequences at work!

Today's Child Refugees

Let's put into perspective the spectacular upsurge in the apprehensions of children fleeing from their violent Central American societies of late. How dangerous and hopeless must conditions be for a parent to spend a king's ransom to send his/her child on a long and perilous journey alone to seek safe haven in a foreign land, knowing s/he may never see his/her child again? The "lucky" children who are apprehended on U.S. soil by U.S. Customs and Border Protection have the right to a hearing to determine if they qualify to remain in the U.S. in lieu of expulsion back to their home countries. This is based upon a law granting "Special Immigrant Juvenile Status" to children who can establish, among other things, that it is not in the minor's best interests to be sent home. The process is complicated, involving both a state Family Court and the U.S. Immigration Court.

The response of the Obama Administration to this "surge" of children arriving at the U.S. border has been to bypass this complicated process and expedite the removal of as many of these unfortunate children as possible back to their Central American homelands. Fortunately, the American Immigration Lawyers Association has been able to field a small army of volunteer lawyers to ameliorate some of the worst excesses of the push to remove these children as quickly as possible.

The United States is now funding new programs in Guatemala, El Salvador, and Honduras aimed at rooting out the causes of poverty and violence that have compelled parents to send their children on the perilous journey north. While this new initiative may show positive results in the future, the Obama Administration's current response to the child refugee flow into the United States has been less than honorable; it is designed more to placate political criticism of the Obama Administration's immigration policies than to uphold the letter and spirit of our immigration laws as they apply to children.

Unintended consequences are harder to predict while an event is still occurring. It is safe to say though, that children who are either imprisoned in the U.S. or sent back quickly to their countries of origin without a fair hearing will suffer psychic, if not physical, scarring for the rest of their lives. In fact, in a report dated October 16, 2014, Human Rights Watch concluded, "In its frenzy to stem the tide of migrants from Central America, the U.S. is sending asylum seekers back to the threat of murder, rape, and other violence."