Congress could help this young mom and other families trapped in an immigration Catch-22

Silvia Avelar Flores is a soft-spoken, devoted mother of three young children. She came to the United States from Mexico with her family when she was just 7 years old, and has lived here ever since. She graduated from school here, married, had children, works, pays taxes, has no criminal record of any kind, and is a highly respected member of her community. Her husband Carlos, a long-time legal resident, recently became a U.S. citizen. As soon as he could, he filed an I-130 immigrant petition form for Silvia — the important first step in obtaining a green card allowing her to live and work in America. Happily, the I-130 was approved. 

There is now a pathway to citizenship for Silvia, but she is unable to move forward. Why? Because of a counterproductive provision that was put in place in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act. This provision established the so-called “bars to reentry” for immigrants who leave the country for any reason after having lived here unlawfully. If such an immigrant has been in the United States for more than 180 days but less than a year, they are barred from reentering the country for three years. If for more than a year, they are barred from reentry for 10 years. 

A simple fix for a big problem

These bars create a nightmarish catch-22 for people like Silvia because current law requires that they must return to their country of origin to apply for a green card, but as soon as they leave, they are immediately barred from returning.  

In Silvia’s case, because her husband is a citizen, she qualifies for a waiver which would allow her to return sooner, but she would still be separated from her family (her husband and her three U.S. citizen children, ages 6, 12 and 14) for a minimum of two to three years. Without the waiver, it would be a full 10 years.

Many of the issues around immigration are complex and messy. There are no easy answers to the knotty questions surrounding border security, enforcement, immigration court backlogs, guest worker programs, trafficking, and so on. By all accounts, our immigration system is broken and needs a complete overhaul. Comprehensive immigration reform — so necessary, but so difficult to achieve — will take time, effort and compromise. 

But eliminating these inhumane bars to reentry is a simple fix that Congress could tackle right now. And it’s a move that already has bipartisan support. Former Republican Rep. Raul Labrador of Idaho, who worked for 15 years as an immigration attorney, said of the bars: “If we get rid of what we call ‘the bars’ . . . we could fix the problem for about 25 percent of the people that are here illegally. And we would do it through the proper legal system.”

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This one simple fix would have an enormous positive impact on millions of American families. The Migration Policy Institute estimates that more than 1.2 million spouses of U.S. citizens or legal permanent residents are blocked from becoming legal residents themselves because of these bars. Eliminating them would not create any new pathways to citizenship. It would merely eliminate the barriers to pathways that already exist. And it would allow those who already qualify for green cards to move forward without having to make the excruciating decision to be separated from their families for many years — a decision that can have terribly damaging repercussions on children, spouses and other family members.

Cruelly separating families for such long periods of time serves no one. There are no benefits, only costs — including to society. In many cases, families that have been stable and self-sufficient suddenly find themselves dependent on government assistance for childcare, health care, and other basic necessities when a parent is barred from reentry.    

Trying to 'get legal' amid uncertainty

Not only are these bars inhumane, they are also ineffective and even counterproductive. The bars were intended to be a deterrent, but in fact have turned out to be an incentive for people to remain in the country illegally so that they are not barred from being with their families. “Far from curtailing illegal immigration and deterring people from overstaying their visas as intended," Paul Virtue, former general counsel of the Immigration and Naturalization Service, has told Congress, the legal bars to admissibility "are actually contributing to the unprecedented rise in the number of undocumented immigrants.”

Silvia and her family have lived in a state of uncertainty and fear for many years now as they’ve done everything they possibly can to “get legal.” Until she has a green card, her situation is precarious and she could be deported at any time. The toll on Silvia and her family, financially (due to the never-ending legal fees), mentally, and especially emotionally, has been immense. Her young children have spent their entire lives fearful that their beloved mother might be snatched away from them at any time.  

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These inhumane 3- and 10-year bars to reentry create insurmountable obstacles for people who, like Silvia, are trying as hard as they can to “get in line” (as they are so often told to do) so that they can follow the outlined procedure to become legal residents.

Immigration reform is inherently nuanced and complicated, and policymakers must often weigh many different competing factors. But in the case of these bars, it’s a no brainer. They are both cruel and ineffective. They harm American families and have actually led to an increase in the number of undocumented immigrants in the United States.

Sharlee Mullins Glenn, founder of the nonprofit Mormon Women for Ethical Government and a longtime advocate working with Silvia, is an executive officer of the Everyone Belongs Project and sits on the external advisory board of Brigham Young University's Civic Engagement program. Jennifer Fuentes Langi, Silvia's attorney, is a founding partner and lead immigration attorney at Fuentes Langi Immigration in Salt Lake City. She was born and raised in Mexico.