Extreme Hardship: The IIRAIRA Act of 1996

Here’s our first guest post from Thomas Kobylecky (who also just recently became a LUPE member!):

The term “Extreme Hardship” is all too familiar to those of us who have been struggling with current immigration laws. But for those who are not, it is a term that was introduced with immigration legislation in 1996, The Illegal Immigrant Reform and Immigrant Responsibility Act. Along with other tightenings of our immigration system, this act created 3 year, 10 year, and permanent bars for illegal aliens from re-entering the country.
* If the alien has been here from 3 months to a year when applying for a visa, they are given 3 years bar. A waiver is available with a letter of “Extreme Hardship” from a U.S. citizen or legal resident family member.
* If the alien has been here over a year, they are given a 10 year bar. A waiver is available with a letter of “Extreme Hardship” from a U.S. citizen or legal resident family member.
* If the alien has been here over a year, returns to Mexico, then re-enters the U.S. without inspection again, they are given a permanent bar. There is no waiver available until 10 years are spent outside the U.S., regardless of family ties with a U.S. citizen or legal resident. The IIRAIRA act gave new felony classification to these cases.

“Extreme Hardship” is something that must be proven to the USCIS, before undocumented family members of U.S. citizens or legal permanent residents can return to the U.S. “Extreme” hardly sounds like a word that should be part of any serious legislation. Webster’s dictionary defines “extreme” as- A: existing in a very high degree. B: going to great or exaggerated lengths. C: exceeding the ordinary, usual, or expected. The fact that it is in legislation means that it is supposed to mean the same thing the day it was written as it does today.

The word “Extreme,” however, is obviously a rubber word, expanding or contracting in its implications, depending on what is considered “ordinary” for the day. Things that were considered “extreme” yesterday are increasingly considered ordinary today. More importantly, it is implied how the immigration officer who is dealing with the case wants to imply it, which brings me to another aspect of the IIRAIRA Act.

Previously, there was a court of appeals for immigrants who did not agree with their case findings, to speak to a higher judge. Swiftly stripping this Constitutional right of due process, this bill gave end-all be-all authority to the immigration officer making the interview at the U.S. Embassy outside of the country. No “ifs,” “ands,” or “buts,” the buck stops here. Ultimately, this violation of our Constitution is the meat and potatoes of the argument for immigration reform, and should be stressed whenever addressing the issue, because it rings true for statesmen of all parties, as well as people from all political beliefs.

“Extreme Hardship,” as it is in this bill, is only valid if it is referring to the U.S. citizen or legal resident directly. If a citizen’s alien spouse is likely to die while serving their bar from the country, it is not valid, because it is not the citizen who dies. If a citizen’s alien parent is likely to be kidnapped and repeatedly violated and beaten while serving their bar outside the country, it is not valid, because the U.S. citizen would still be safe. The simple argument that children will not mature properly and be emotionally scarred from not having their parents together in the same country while waiting out these lengthy bars, is not valid. This is shocking to everyone who is not familiar with our immigration law, because once exposed, it is so obviously not the character of a great nation that says, “Give me your tired, your poor, your huddled masses yearning to breathe free.”

For the immigration reform movement to be more than just an empty “banging gong or a clanging cymbal” in the ears of our government, we must do more than merely congregate and shout “Si, Se Puede” at each other, over and over again. We must do more than observe the injustice, and read weekly newsletters. We have to speak out, and BE the witness. This means that not only should we be making phone calls and sending messages to our elected officials, but we must also be informing our friends and family, local and national media sources, and everyone within our circles. We must find a way to apply the very serious issues of the day, such as spiking drug violence in Mexico, or our increasing jobless rate, to strike home with our legislators, and convince them that this battle is worth fighting NOW, and not later.
In a good analogy, a succesful movement is like a school of fish.

In large numbers, fish instinctively school together in order to achieve a mutual goal. To them, the goal is to avoid extinction by being picked off one by one by many predators. While scooling, only a handful of them can actually see their destination, but for the most part, their vision is limited to only the fish in front, above, below, beside, and behind them. Nevertheless, they do not stray, their faith and desire to survive drives them on together. Individually, none of them has the power to secure the future of their species. But united in their God-given instincts, nothing can get in their way, as they gracefully swim as one, powerful body.

Let’s continue to keep that flow between those in front, above, below, beside, and behind us, so that will multiply to the numbers we need to make an impact. We might be pushing something heavy uphill, but that thing we are pushing is a snowball. It is getting bigger and bigger, and eventually we will reach the top. It will sureley be an extreme hardship if any of us give up. Swim on.


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