Archive for February 2011

U.S. Immigration Law and Morton’s Fork

A client filing for a hardship waiver has obtained letters of support from friends and family for the Immigration Judge, asking that discretion be exercised to grant the waiver. A common theme pinpointed in all of the letters was that denial of the waiver would give the U.S. citizen family members of the waiver applicant two undesirable choices that would each result in undesirable outcomes. This situation is known as Morton’s Fork.

The term comes from the tax collections carried out by Lord Morton, of England, in the late 1480s. He reasoned that someone who lived modestly could clearly afford to pay high taxes and someone who lived in poverty must have savings so they too could afford high taxes. The people were to be taxed at a high rate, no matter what they did.

In some cases, a non-citizen placed in removal proceedings may be eligible for a waiver that would prevent his or her deportation if granted. Such waivers are discretionary and may be granted only if the applicant can show that his U.S. citizen spouse or parents (and in some cases children) would suffer “extreme hardship” if he or she were to be deported from the U.S. What qualifies as “extreme hardship” varies from case-to-case, but generally must require a showing of more than simply financial or emotional hardship. The Immigration Courts have said that anyone facing separation from a loved one would likely face financial or emotional hardship, thereby making them, so goes the logic of the Immigration Courts, unextreme hardships. What makes hardship “extreme” can be a number of factors that might not meet the threshold separately, but taken together amount to an extreme hardship overall.

The two aspects of removal proceedings generally, and hardship waivers in particular, that have struck me most over time is that U.S. Immigration Law offers U.S. citizens Morton’s Fork by design, and that the vast majority of U.S. citizens are, or appear to be, completely unaware of this.

Making the case for extreme hardship underscores the gravity of deportation and the U.S. approach to it as established in a complicated and harsh body of law. As written and interpreted, U.S. Immigration Law puts every U.S. citizen family of someone being deported in the position of choosing between a rock and a hard place. And it is done with incredible non-chalance. Every day, U.S. citizens are effectively told, by the U.S. Government, ‘You can either accompany your loved one (spouse, parent, child, etc) to [his or her home country], or you can continue to live in the U.S. without him or her (spouse, parent, child, etc.).’ Simple. Right?

What this dilemma (and it is a dilemma more than a “choice”) can mean is as devastating as the U.S. is diverse. In many cases, it means U.S. citizens must consider living with their loved one in an impoverished country, where English is not spoken and whose language the citizen does not speak, where perhaps for women there are limited career opportunities, or for children there are limited educational institutions. For the elderly, transplanting to a foreign country after living nearly an entire lifetime in the U.S., the obstacles may be even greater. Conversely, the option would be to remain in the U.S., where all is familiar and a life is already established, without the deported non-citizen. To so many, this simply is no option at all. The idea of living separated from a spouse, raising a child without a parent or letting a child raise him- or herself, or spending the last days of one’s life without their children sitting bedside – this can seem even more unbearable.

The feeling of disbelief captured in these support letters written by U.S. citizens is nearly ubiquitous among the U.S. Citizens I have met who are experiencing the harsh nature of U.S. Immigration Law for the first time. The shock that their own U.S. citizen family and friends could find themselves in such a situation, be put in such a situation, by the U.S. Government is palpable. ‘How can they make this choice?’ and ‘Are they to choose between one child and another,?’ are questions that commonly appear throughout these support letters. Unfortunately, the answer is yes.

Yes, U.S. Immigration Law largely does not stand for the preservation of families. Yes, U.S. citizens are made to choose between separation from their own country and life, or separation from their beloved family member being deported. Yes, the results are equally implausible. Yes, this is harsh and unfair.

Yes. It can be changed.

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