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A Legally Trained Reader Says 245(i) Isn't Amnesty, We Say It's Spinach, And We Say….
NOTE: PLEASE say if you DON'T want your name and/or email address published when sending VDARE email.
[Vdare.com note: We print one (1) letter a day, and half a dozen on Saturday; we cannot print all worth publishing. But we promise we weren't deliberately suppressing this letter. IF WE HAD MORE RESOURCES, we would have been able to deal with it more promptly, and preclude our opponents' sneers.
The Internet, of course, means that Mr. Huntington can post it on his own site faster than our editorial staff could get to it. But here it is, with replies from James Fulford and Juan Mann.]
Robert Huntington, Esq., writes.
Your letter from Gary Butner described former section 245(i) of the Immigration and Nationality Act as "an amnesty" and you agreed with him. This is inaccurate as a brief explanation of 245(i) will demonstrate.
245(i) was first passed in 1994. At that time, those
were illegally present in the United States but
otherwise eligible for an immigrant visa were barred
from adjusting status (i.e., getting their green card
without leaving the U.S.). There was no bar to their
returning home and getting their visa through the U.S.
consulate in their home country. Thousands did so every
year. The main
beneficiaries of this arrangement were the airlines.
245(i) allowed people who were then forced to return home to adjust status by paying a penalty (originally $750, now $1000). The idea was to channel the money being spent on the trip home into the U.S. Treasury. NO HIGHER PRINCIPLE WAS INVOLVED.
Subsequently, in 1996, Congress enacted the 3 and 10 year bars for those who were here illegally and returned home. In effect, this took away the option of returning home for a visa and forced people to adjust status based on 245(i). Afterwards, 245(i) was allowed to expire but those who had petitions filed before its expiration were grandfathered.
It follows that 245(i) can in no way be described as an amnesty. It was not intended as such nor does it act as such. Everyone who is eligible for it is entitled to a visa, either based on a family petition or an employment petition. To describe it as an amnesty is intellectually dishonest.
Indeed, one might think that restoring 245(i) would be one reform that all could agree on, especially those conservatives who hold family values dear. Right now, wives and minor children of legal permanent residents (preference 2A) face a wait of seven years or more. Hundreds of thousands face the painful choice: break the law or break up your family. Current law makes it impossible to both insist on obeying the law and to support families as the basic building block of society.
Robert Huntington, Esq.
James Fulford writes: We've repeatedly said that 245 (i) amounts to amnesty, since it allows illegals to stay in America. (See John Miano's explanation here.) You say it's not amnesty, we say it is spinach, and we say the hell with it.
And law enforcement and the rule of law gain when illegals have to leave and come back, especially since the ICE now has the choice of not letting them in again.
As for family reunification, families can be reunified anywhere. If a deportable alien has a wife and child in America, he can take them with him, which is what an American does if he's asked to leave France, Turkey, or Mexico.
Juan Mann Writes:
Judging by this letter, it appears that any reports of a shortage of sanctimonious alien-apologist immigration lawyers are entirely unfounded. The bottom line: of course Immigration Act Section 245(i) was a non-deportation amnesty by virtue of its free pass for forgiving unlawful presence and illegal entry. If it weren't, the aliens wouldn't bother to apply for it.
As I previously explained:
Amnesty: n. a decision by a government to forgive people who have committed particular illegal acts or crimes. – Cambridge Dictionary of American English
All those who applied for Section 245(i) were by definition removable illegal aliens and visa over-stayers who should have been kicked out of the country, that is, loaded onto buses and planes heading outbound to wait in their homelands for visas through normal channels of consular processing.
But instead of being sent out of the U.S. on the next thing smokin' . . . these aliens were accommodated by being allowed to remain on U.S. soil while supposedly waiting for some fourth-preference visa number to come up, regardless of whether or not their stepbrother's I-130 [immigrant petition] turned out to be completely fraudulent.
Through its many incarnations by "deadline" extensions, the Section 245(i) charade made this crowd of consular-bypassing, line-cutting non-current visa cheaters "non-arrestable" and "non-deportable" as a matter of former Immigration and Naturalization Service (INS) policy. This provision allowed these aliens to NOT be placed in removal proceedings (where they would hopefully have been deported eventually – but that's another story). But instead, Section 245(i) rolled the decision on their admissibility over until another day. And yes, that's an honest-to-goodness non-deportation amnesty if there ever was one.
Remember also that reunification with precious family members works both ways (namely, outbound from the U.S. as well as inbound).
And another thing . . . I previously wrote – 08/30/04 - Amnesty Betrayals Past And Present A Handy Reference Guide – which mentioned Section 245(i) among the six types of amnesty embedded in current federal immigration policy, along with the statutes and regulations. Point 2:
Not deporting any illegal aliens who can adjust status through family or employment petitioning in the future — Various schemes of 245(i); LIFE Act; Child Status Protection Act (age out of visa categories doesn't matter); various waivers; and even allowing illegal aliens convicted of the most serious crimes in the Immigration Act – aggravated felonies – to adjust their status through a family member anyhow and get a green card.
VDARE.com conclusion: This mind-numbingly complex discussion gives rise to two conclusions:
(1) Any Bureaucratic maneuver which enables those illegally present in America to stay without meaningful penalties is an effective amnesty.
(2) Men who resort to jargon and obfuscation to disguise this are not Good Guys. Tell Huntington this.