Twenty years ago, on April 13, 2001, my husband crossed the Mexican border into California with a few other Brazilians and a Mexican smuggler. It was Good Friday. In the dark, mountainous desert, he felt thorns brush his skin. He worried that with one misstep he would fall in a crevice and die there.
The smuggler left them hidden by rocks and brush on the side of the road just over the border on the U.S. side. He promised to return soon with a car. Three days passed. Out of food and supplies, with only dirty water from a well at the side of the road, they began walking again. From El Centro my husband took a bus to Los Angeles and headed to the airport. He paid cash for a cheap flight to Boston on a puddle jumper that made four stops. At an airport bookstore, he bought a paperback copy of Don’t Sweat the Small Stuff.
We met almost a year and half later, in November 2002, in a yoga class at a Boston-area gym. When we decided to marry the next spring, we consulted a lawyer to find out what we would have to do to normalize his status. I will never forget that day. It was a Friday afternoon, and we were excited about heading to New York after the appointment for the weekend. My husband had never been to New York City. But to our surprise, the lawyer said he could not help us. He declined our case.
It was the beginning of my education in immigration law, which I knew nothing about when I fell in love with an immigrant. Like most Americans, I believed that marriage guarantees an alien spouse legal status. I would learn over the next few years that the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), signed into law by Bill Clinton, ended that practice for people who had crossed the border or overstayed visas. It made family separation routinely acceptable more than two decades before the Trump administration began separating children and parents at the border.
Discretionary leniency characterized the law’s enforcement in its first years. Indeed, in the late 1990s, broad immigration reform seemed possible, as even business leaders and Republican elites called for open borders on the grounds that the U.S. needed immigrant workers. September 11 changed all that, as immigrants were recast as national security threats. My husband and I learned firsthand that the crackdown in enforcement would be swift and brutal.
This is a story about how we came to understand and experience immigration law — what it’s like to feel the awful weight of the state in your daily life, pressing suddenly on the most intimate of choices. Though the details are personal, this is not really a story about me or my husband. Untold numbers with fewer means and in tighter straits have suffered more than we did, and they often ended up with permanent family separations. But our decade-long experience under this law, with its absurd hoops and cruel trials and capricious bureaucracy, was enough to make plain the morality of the law itself. Stories about immigrants so often invite judgment, offering a sympathetic character who in the end is deemed worthy of entry to this country. Indeed, as we learned, the law is based on this premise, that some families “deserve” to stay together, as if others do not. So it is the law, not immigrants’ lives, that demands our scrutiny.
The 1996 law was a radical departure from long-standing norms in this democracy that gave undocumented immigrants (including those without U.S. spouses) a path to citizenship. It made “inadmissible” many immigrants who in the past would have over time been eligible for green cards. Like the other “reform” bills of that era, especially the 1994 crime bill, it created new norms of scrutiny, punishment, and coercive violence. It is a central component of an immigration regime whose reach is tyrannically invasive, whose authority is all-powerful, and whose harm has been incalculable.
After that first meeting with a lawyer, we drove to New York in near silence. When we got to our hotel room, I cried. We had expected consequences for my husband’s immigration violation — fees, waiting periods, paperwork, lawyers — and were prepared to accept them, but we never imagined that our case would be impossible. He offered to return to Brazil so I didn’t have to live with the burden of his status. I said no.
In 2003, we married in a sanctuary city that grants marriage licenses regardless of status. We had a daughter the next year. Anyone I dared tell about our situation expressed disbelief: But you’re married! they’d say. We consulted several more lawyers; they all felt that our case was too hard. That year, the Department of Homeland Security (DHS) had released a ten-year strategy document, Endgame, with the goal of 100 percent “removal of all removable aliens.”
In the following years, the effects of immigration enforcement increasingly intruded on our life: We could not get a joint bank account (I had to beg a teller I knew at my local branch to make an exception); we could not get car insurance; we could not get on an airplane, even for domestic travel; and in spite of the fact that my husband paid taxes through an international taxpayer-ID number, the crackdown on employers of undocumented immigrants cost him his job.
In 2005, at the suggestion of my husband’s friend, we consulted with another lawyer, Rachel Tadmor. Her office was in Worcester, an hour’s drive from us. Our daughter crawled around the office while Rachel explained in more detail what we already knew: that there was virtually no chance of changing my husband’s status. But she thought she could help us if we were willing to wait.
She explained that the 1996 law had created three- and ten-year bars to reentry for immigration violations. The longer bar applied to anyone in the country for more than 180 days without a visa: i.e., someone like my husband. And the clock only started after the violator left the country. The only way for mixed-status couples to overcome that bar was to obtain a waiver. Under the law, waivers would be granted if the family — or “qualifying” U.S.-citizen family members — would experience “extreme hardship” in separation or in relocating to another country.
The catch was that the definition of extreme hardship specifically precludes the obvious: that family separation, or leaving the life you’ve always known, creates hardship.
“What does count for extreme hardship?” I asked.
“If you had a terminal illness, you might have a chance,” she said.
She addressed me directly because any hardship experienced by my husband — the undocumented person — was irrelevant to the state. Years later, it’s hard to explain the fleeting feeling of hope that her explanation gave me. But it quickly gave way to nausea. At the time, I was about the age that my mother had been when she died of cancer. I turned Rachel’s answer over and over in my head to try to make sense of it: the state would consider my family’s hardship, but only in the face of an imminent death that would dissolve my family anyway.
We also learned from Rachel that waivers for Latin American nationals were then being processed only by the consulate in Peru; that the processing could take years; and that there was little hope that ours would be approved. Nonetheless, she encouraged us to come forward, file the initial paperwork for a marriage petition, and wait. She said that we’d be invited to an interview, but that we were not to go. He would likely be detained and deported.
We filed the marriage petition even though we understood that it increased the possibility of deportation. Coming forward seemed the right thing to do, and, as Rachel argued, it would give us a place “in line” if the rules changed. She also told us that we had the right to refuse Immigration and Custom Enforcement (ICE) agents entry into the house. (Would I be able to close the door in their face? Or would they push through anyway?)
Meanwhile, in 2005, President George W. Bush was pushing hard for comprehensive immigration reform. He supported a bipartisan bill, the Secure America and Orderly Immigration Act, sponsored by Senators John McCain and Edward Kennedy, that would have given millions of immigrants, my husband included, a path to citizenship. Later that year, hard-line Republicans in Congress responded with the so-called Sensenbrenner Bill, which would have required local law enforcement to turn over undocumented immigrants to ICE and criminalized undocumented immigrants as well anyone who helped or “housed” them.
Pro-immigrant rallies broke out across the country in March 2006. We had just celebrated our daughter’s second birthday with a small group of children and their families. She’d been delighted and amazed by the flurry of activity in the house. As we emerged from the subway for a rally, she saw the crowds of people chanting. “For me?” she asked, with eyes wide. Within months, the reform bills in Congress were dead.
We were hopeful that things might get easier with President Barack Obama’s 2008 election. But that hope quickly faded. Presumably in an effort to lay the groundwork for reform, he ramped up ICE’s budget and escalated deportations to unprecedented levels. That effort earned him the title “Deporter-in-Chief.” Despite the administration’s repeated claims that only criminal immigrants were being targeted, it turned out that it was much easier to find those whose only offense was to violate immigration rules.
One evening during Obama’s first term, my husband told me that “something funny” happened when he was home alone. He’d answered a knock at the door to find an ICE agent on our front steps, his badge out. The agent asked for someone whose name my husband didn’t recognize. So my husband asked the agent what address he wanted. It turned out the agent was on the wrong street, and he went his way. For weeks, I would look out the window, checking for parked black cars, before stepping out.
We lived with the threat of deportation hanging over our heads for ten years. It never came. The state denied us any path forward but apparently felt no urgency to remove my husband. But I felt its presence all around us. It was impossible to experience family life without that stigma.
In August of 2012, when we could no longer stand it, my husband self-deported to his hometown in central Brazil. He hadn’t seen his parents or siblings in more than twelve years. He left with Rachel’s assent, if not her blessing. She was seeing more waivers getting approved, and they were being processed more quickly and in more locations. She thought we had a fifty percent chance of getting ours approved and would have preferred to wait for better odds. That year, parents of some 150,000 U.S.-citizen children were deported. In some cases, they were handcuffed and removed in front of their children, who were left home alone.
After his departure, we requested an interview at the U.S. consulate in Rio. It took four months. We knew that our marriage petition would be denied and that we would be told we needed to apply for the waiver. In the meantime, I prepared our “proof of marriage” dossier and started working on the waiver materials.
I dragged a binder with hundreds of pages of documents and photos on the plane to Rio. During our interview the next morning, the agent told me to put it away.
“I believe you’re married,” he said.
He then apologized: He would have to deny our request for a green card. His courtesy surprised me. If the authorities were not skeptical of our case, what did concern them?
Meanwhile, across the room, another agent was raising his voice. “Your lawyer lied to you,” he shouted. A young Brazilian woman wept while her American husband tried to comfort her. Unscrupulous lawyers can take your fees and let you exit the country with the belief that everything will be okay, all while knowing that it’s unlikely you’ll be back to complain. As we left, the couple sat crumpled in the corner of the waiting room.
We were lucky. We were prepared for what would happen in Rio. And we had a good lawyer. In fact, by the time of our interview, our waiver application, with the extreme-hardship narrative at its heart, was almost ready to go. I’d been working furiously on it all fall after I got home from work. It was a huge task on top of the hard experience of single-parenting.
Its purpose was difficult to grasp. Because families cannot write about the simple fact that their loved one’s absence is harmful, every narrative is different and depends on family history, finances, medical issues, and anything else that the petitioner might deem relevant.
The narrative I wrote details generations of family in diaspora, parental loss and illness, and a deep wish to avoid repeating the pattern. Everything I wrote had to be supported with verifying documents. When I wrote that my mother was born in Berlin in 1932, I needed to provide her birth certificate. When I wrote that her family fled the Nazis to Sweden in 1937 and that her father died when she was twelve, I needed evidence. When I said that she died of melanoma in 1977, I needed to provide her death certificate. I hated asking my father to look in his old files for proof of her illness. He’d held onto one document, a letter from a doctor who wrote how much he’d enjoyed meeting my mother at a consultation. He sent it to me along with a letter of support for our file that said that he did not want me to be a single parent like he was.
I had to request my own medical records and our daughter’s school records. I asked for letters from college friends, colleagues, employers, and therapists. We included family photographs and drawings by our daughter. The private details of our lives, especially the worst moments of mine, were packaged up for a file that would last forever at U.S. Citizenship and Immigration Services (USCIS). But I couldn’t stop digging up more. Because “extreme hardship” had no precise standard, I did not know how much was enough. I stopped when I simply could not do any more, and Rachel was satisfied.
On our daughter’s ninth birthday in 2013, I learned that my husband’s green card had been approved. I called him in Brazil. It sounded like he was crying.
It turned out that in early 2013, while we were still waiting for the waiver approval, Obama had granted some relief to families like ours with an executive order. Families could file for a waiver while the undocumented family member was still in the United States and, assuming the waiver was approved, they would then leave the country for the interview and return in a matter of weeks. The process enormously reduced two burdens for families: the length of family separation and the expenses involved in having their loved one outside the country for an indefinite amount of time. And it kept them from being stuck outside the country if the waiver was denied. Even so, many families simply could not afford the process or didn’t meet its income requirement.
The provisional waiver was a welcome relief. But it was an administrative change, not a change in the law. Enforcement can fluctuate with different administrations. The deportation of immigrant spouses of U.S. citizens with no criminal records spiked again during the first years of the Trump administration.
The fact remains that even within more lenient processing guidelines, the fates of families depend on whether their particular story satisfies the whims of the state (not to mention whether they can find and afford trustworthy and competent lawyers). As the most recent USCIS guidelines explain, extreme hardship is “not expressly defined” and is subject to change:
As the U.S. Supreme Court recognized in INS v. Jong Ha Wang, “[t]hese words are not self-explanatory, and reasonable men could easily differ as to their construction. But the [INA] commits their definition in the first instance to the Attorney General [and the Secretary of Homeland Security] and [their] delegates.” Therefore, “[t]he Attorney General [and the Secretary of Homeland Security] and [their] delegates have the authority to construe ‘extreme hardship’ narrowly should they deem it wise to do so.”
In recent years, Rachel says, USCIS has been more generous in approving waivers. But she has had cases that look very similar in which one family is denied and the other is approved. In one, a family was told that they did not meet the extreme hardship standard because they did not have children.
In some situations, meeting the hardship standard set by the state is virtually impossible. If an undocumented immigrant is already in removal proceedings, U.S. relatives must meet the more severe standard of “exceptional and extremely unusual hardship” to stop deportation. Consider the 2019 case of a Guatemalan immigrant who lived with his five U.S. citizen children, his partner, and his mother (a legal permanent resident). His appeal details, among other things, his mother’s medical conditions, his child’s anxieties, and his fear of returning to Guatemala, where his life had been threatened by criminal gangs. The more reasons he puts forward to stay, the more the judge picks them apart: His mother can get adequate if not comparable medical treatment in Guatemala; his child’s anxiety about separating would disappear if he left the country with his father; the fear of criminal violence is not relevant to the appeal (only the threat of political violence is).
If an undocumented immigrant has left their U.S. family to see a sick family member and then returns across the border, no arguments about hardship will be considered. Not even a remote path for legal status exists.
The murkiness of the hardship standard is not unique to USCIS waivers. Amnesty cases use a similar logic. “The humanitarian assessment,” as Paul Linden-Retek writes, “is shot through at each stage with judgments about the seriousness of harm and the deservingness of protection.” As a result, what counts as harm remains elusive, even as the law insists that “moral and legal recognition remains an empirical characteristic to be demonstrated and verified.”
No just law allows bureaucrats to deny the humanity of the petitioners by creating two types of families: those that deserve recognition and those that don’t. Trump’s border separation policy exposed this logic to a shocked public, but it was not a fundamental break from a policy that has separated hundreds of thousands of families in recent decades. What is especially sinister about the IIRIRA’s demand for extreme-hardship narratives is that it cruelly exposes individual vulnerabilities to scrutiny while making the coercive violence of the state and its policies invisible. It hides a simple truth: The state does enormous, lasting harm when it separates families.
As the Center for Migration Studies describes it in a 2018 report, the IIRIRA normalized cruelty. It has “punished U.S. citizens and noncitizens of all statuses,” “curtail[ed] equitable relief from removal,” and created “insurmountable, technical roadblocks to asylum.” It has created “the concept of ‘criminal alienhood,’” over time conflating “criminality and lack of immigration status,” and “divided mixed-status families.” It has enlisted state and local law in immigration enforcement, “driv[ing] a wedge between police and immigrant communities.”
While Clinton’s crime bill is now widely seen as having been hugely damaging to individuals and communities of color, the IIRIRA hasn’t undergone a similar reassessment. We can start by acknowledging that people who have made this country their home for years develop deep attachments to our communities. “Unlawful presence” is not, as the IIRIRA would have us believe, an eternal condition. We should follow the logic of the political philosopher Joseph H. Carens, who has forcefully argued that time erodes the right to deport a person. Most Americans agree, including conservative Republicans. A 2017 survey found that “there is no state in the country — whether red, purple, or blue — in which a majority prefers deportation as the means of solving the country’s illegal immigration problem.”
We need a simple entry bar to the process with less individual scrutiny. The three- and ten-year bars need to be repealed. For families, ruling out marriage fraud (which is rare), conducting a basic background check, and requiring a fixed number of years of residence (say, three to five) should be enough. We need to return to periodic amnesties, which served as a statute of limitations even for those without qualifying U.S. relatives, or, as Carens suggests, to a kind of rolling amnesty that kicks in after a certain period.
Some will argue that granting relief will only exacerbate the border “crisis.” But as Harsha Walia and others have argued, there is not so much a U.S. border crisis as a global crisis: climate change and extreme inequality will increasingly displace millions of people from the global South. Many of them will land at our border with Mexico. No amount of policing and enforcement will stop the flow. No matter how large DHS grows (it is already the largest immigration-law-enforcement agency in the country), it cannot impose order on that chaos. Our obsession with enforcement has only given birth to a machinery of cruelty.
As Joe Biden’s efforts for immigration reform falter, we need to change the way we talk about immigration. The public debate is focused on the immigrants who have already been deemed “deserving”: DACA immigrants (innocent), farm workers (necessary), and perhaps now essential workers (heroic). Labeling them worthy only further dehumanizes the millions of people who have lived here in limbo, some for decades. After 20 years of failed immigration-reform efforts, their numbers are unprecedented. Moving forward is not a task for enforcement, but for our collective political will and moral imagination.
Deborah Chasman, co-editor in chief at Boston Review, was a 2018–19 fellow-in-residence at the Edmund J. Safra Center for Ethics at Harvard University.