It’s time to tackle the 3/10 year bar!

Author: on May 1, 2017


Perhaps not since the Japanese internment camps of the 1940’s, or during the aftermath of 9/11, have immigrants been more fearful than they are now.  Never have I seen immigration attorneys and advocates more concerned about what might happen to their clients and communities. And never has an administration been more brazen and hostile against immigrants in the name of enforcement and the rule of law.

So what can be done?  The answer is, we raise the bar on the fight! But with so much to fight for, where do we even begin? The border wall? Detention beds? Raids? Protecting DREAMers? Defending sanctuary cities? There are so many important issues to advocate for.

What most of these issues have in common is the intent to remove people as quickly as possible, without due process or humanitarian consideration. These disastrous proposed changes will affect people who have been here since they were children and only know America as home; people who have been living here with their U.S. citizen or lawful permanent resident families; people who are victims of domestic violence or other crimes; people who are running their own businesses and hiring American workers; people whose only crime was to enter the U.S. without status, in most cases many years ago, and often not of their choosing.

President Trump promised that only “bad hombres” would be deported and that a system would be put in place for people to come back legally. But we are seeing the opposite.  People are being detained and deported, seemingly randomly, sometimes during simple check-ins with Immigration and Customs Enforcement (ICE).

Removing mothers, DREAMers and people with longstanding community ties doesn’t make America safer. Removing them doesn’t respect the values upon which this country was founded. And removing them is ripping apart families in the most heartbreaking way imaginable.

For example, 23-year-old Deferred Action for Childhood Arrival (DACA) recipient Juan Manuel Montes was deported from the U.S. back to Mexico.  He did not have a criminal background.  He cannot come back to the U.S. because he is subject to a 10-year bar from returning. His case is ongoing and the National Immigration Law Center is leading that fight as the Department of Homeland Security (DHS) refuses to share information with the attorneys about his interactions with officers.

Another example of someone trying to “come back legally” is Karl* from an Eastern European country. Karl has a successful business that employs a number of American workers. He is out of status and would desperately like to get back into status. Although he would be eligible for a nonimmigrant or investor visa, should he leave or be removed from the U.S., he would not be able to return for at least 10 years, same as Juan Manuel. His business would fail and his employees would be left without jobs.

If the rhetoric of this administration is to tell people “come back legally,” then a legal path must be created so that they can quickly return and reunite with their families.

While the ideal solution is real comprehensive immigration reform, that is a long fight and is not going to happen anytime soon. So, I propose that we tackle the 3/10 year bar with expediency. If we cannot stop the deportation of all immigrants caught up by a deportation force on steroids, maybe we can focus on a way to bring them back. And the only way to do that is remove the 3/10 year bar law that was put in place in 1996.

It is likely to cause an uproar and it will be an uphill struggle. But perhaps we start with what is happening now – remove the 3/10 year bar for only those who arrived in the U.S. before November 8, 2016 (election day).  There is room to be creative.

There is no question in my mind that as immigration lawyers, advocates and organizers, the 3/10 year bar issue must be pushed to the top of the agenda because we need to have an option for those we’re not able to save before removal. This would give them a chance to return, to rebuild their lives, to care for their children, and contribute to our communities and country. Let’s be creative with policy solutions and give Congress a chance to take action on a small piece of the immigration law puzzle, with a simple solution to address the needs of today.

* name changed

Written by Tahmina Watson, Co-Chair, AILA WA Chapter Response Committee 

  • David Funke

    GRREAT! This approach, which would unify millions of nuclear families, erase untold suffering, and allow employers to file labor certs for trusted workers, requires no new legislative language (unless you want to raise money by waiving the bar with fines commensurate with immigration violation history) Finally! In my 21+ years of AILA membership, I have been saddened that AILA never made this its #1 priority. Why? Because AILA is aligned with the open border movement (or as they call themselves, “anti-incrementalists”). And when the debate is between the know-nothings and MALDEF, and you are in the middle of the road, you are hit by traffic going both ways.

  • Megan Johnson

    Great article, but how can you possibly talk about the 3 and 10 year bars without mentioning the much worse permanent bar? (Not to mention false claim to citizenship.) I’ve waited for years for people to start talking about these bars and when they finally do, they talk about the least harmful ones for which there are waivers. What is 3 years compared to a lifetime? Seriously I hope the author can respond as to why she made this choice, I’m confused.

  • Belle Woods

    Dear Megan, Thank you for your comment. I recognize that much more needs to be done. The intent of the piece is to immediately elevate the importance of the bars given the current political climate. In my opinion, we need to start somewhere and focus on what might be achievable as an interim solution. The issue should be a top priority when speaking with law and policy makers. I think this is a crucial time for AILA members to come together and put forward creative and realistic options that could see the return of at least some of our clients. Any and all ideas of course are welcome! Sincerely, Tahmina

  • Megan Johnson

    I really appreciate your response, thank you! We agree on a lot, but I would encourage you to think about including the permanent bar into your discussion.

    I can’t imagine a legislator supporting reforming the 3 and 10 year bars, but being scared away by the permanent bar. It is really the same topic and honestly I would guess that most legislators would barely notice the difference. And really, the permanent bar causes so much more harm, as I’m sure you’ve seen with your clients.

    As a side note, you may be interested in supporting HR 1036 which is being advocated for by American Families United, since it tackles similar issues. This bill addresses many of the barriers (including bars) that prevent spouses of US citizens from obtaining residency.
    http://www.americanfamiliesunited.org/i601

  • Megan Johnson

    I appreciate your response! We agree on a lot, however I would encourage you to think about including the permanent bar into your discussion on reforming the bars.

    I just can’t imagine a legislator supporting a bill to reform the 3 and 10 year bars but then getting scared away by the inclusion of reforming the permanent bar. It’s the same topic. I think most legislators would barely notice the difference, so I don’t see the downside of including it. To exclude the permanent bar, but reform the 3 year bar seems almost cruel considering how much worse it is to have a permanent bar.

    On a side note, you may be interested in supporting HR 1036, which is being advocated for by American Families United, as it tackles similar issues. It addresses many of the barriers (including bars) that prevent the spouses of US citizens from obtaining residency.
    http://www.americanfamiliesunited.org/i601

  • Michael

    In addition to eliminating the 310 year bar, I’d like to see 245(I) revived. Raise the penalty to even $5,000. Why send the people out of the country, making money for airlines and hotels (due to overseas travel), disruption of the person’s life, etc. 245(I) could generate tens of millions of dollars of additional revenue for USCIS. Why would Trump want to throw that money away? Screen and adjust them in the US, vs sending them out, just to come back.