Anthropology essay final

CHAPTER 1

Four Million Families

F.-.t;~¢..q!?4.M~~ly .. Rene likes fireworks. He is especially proud of his 4th of Iuly fireworks show, which draws dozens of family members, friends, and neighbors to his annual backyard barbecue. The sale of exploding fireworks is banned in his home state of Illinois, so Rene buys them just across the state line in Indiana. His wife, Molly, drives, since Rene does not have a driver's license. This year, Rene's fireworks are especially good, and this worries me a little. The night before, the local news had reported that Chicago police would be cracking down on illegal fireworks, even arresting people who set them off. But Rene and Molly are not worried, and there are at least two police officers in atten- dance at the barbecue, so I try to relax and enjoy the show. I watch as my young son waves a glow stick around in delight.

Rene is doing what many U.S. citizens do on the 4th of July: grilling hot dogs and hamburgers, drinking beer, and setting off fireworks. His three chil- dren and their friends are alternately jumping around on the trampoline and into the swimming pool. His family and friends are sitting at patio tables, eating potato chips, drinking beer, and discussing U.S. gun laws. A bit drunk, they sing "God Bless America" as the fireworks climax. It is a quintessential American scene. Only Rene is not a U.S. citizen; whether he can be considered an American mostly depends on your perspective.

1

2 BECOMING LEGAL

When Rene came to the United States from Mexico 20 years ago, he did not plan to stay. Like most undocumented people in the United States, he thought he would work for a few years, save some money, and return home. He did go back to Mexico once, to see his parents. He was caught on the U.S.-Mexico border as he came back to Chicago, and that trip sabotaged his chances oflegal- izing his immigration status-although he did not know it at the time. Because Rene is undocumented, the little risks that he takes, like driving without a license and setting off illicit fireworks, can have serious consequences. In ever- increasing numbers, undocumented immigrants are being deported from the United States following arrests for these kinds of minor infractions.

Despite the risks, Rene stays. Where else would he go? His wife and three children are U.S. citizens; they are from Chicago and uninterested in relocat- ing to Mexico. Rene's long-time job is in Chicago, and his house is in Chicago; most of his friends are in Chicago now, too. As he flips burgers on the grill, Rene's Chicago Bears tattoo peeks out from under his shirtsleeve. In most meaningful ways, Rene's home, his only home now, is Chicago. That is why he and Molly still hope to change his immigration status someday: they want to

.s.t.~Y.~~~~.t.~~~,.~~~ .~~.~Y.~~~~.~~.~~~y.~~:.~' .

Insome ways, Rene fits the stereotypical image of an undocumentedimmigrant. He is from Mexico, and he came to the United States asa young man in search of work. He lived, worked, and made his way around those first few years mostly in the company of other young Mexican men. He works in a restaurant as a busboy; his pay is just less than the U.S. average, and he has little hope for advancement here.

In other ways, Rene defies most popular stereotypes of undocu- mented people. He has lived in the United States for two decades, is married to a U.S. citizen, speaks English fluently, owns his own home, and is deeply integrated into U.S. society. These unexpected parts of Rene's story are more common than you might imagine, and they are getting more so every day.

In the early 1990s, I worked in a restaurant with several undocu- mented Mexican workers. Although they had been working in the United States for years, these men were more or less active migrants who would return to their homes in Zacatecas, Mexico, once a year. Those visits cost them approximately $200 each time; sometimes they

Four Million Families 3

would get caught at the border, and then they would immediately try to cross again. The risks were small, and the payoff-getting to visit family in Mexico and return to work in Chicago-was worth it.

That migration experience is unrecognizable for those who traverse the U.S.-Mexico border today. Now, the U.S.-Mexico border is fortified with miles of steel fencing, high-tech detection systems, and tens of thou- sands of Border Patrol agents equipped with trucks, dogs, drones, global positioning systems, and light aircraft (Chacon and Davis 2006; Meyers 2005). Perhaps paradoxically, militarized efforts to "defend" the border have made it far more dangerous. The effects on migrants are relentless and deadly serious: people now die crossing the U.S.-Mexico border at a rate of nearly one every day (U.S. Customs and Border Protection 2014); theft, rape, kidnapping, and assault are ubiquitous; the consequences of getting caught migrating increasingly include federal criminal prosecu- tion and a prison sentence prior to deportation; and the cost has swelled to anywhere between $1,000 and $10,000per person per trip.

Much as a perilous U.S.-Mexico border makes it more difficult for some undocumented people to enter the United States, it also makes it more difficult for them to leave. Rather than risk leaving and being unable to come back, more and more undocumented people stay where they are. Thus, one consequence of border militarization has been an increase in the number of undocumented people who settle in the United States for the long term. As of 2010, two-thirds of the undocu- mented population had been living in the United States for 10years or more (Taylor et al. 2011).For migrants like my friends from Zacatecas, border militarization and settlement mean prolonged and indefinite separation from their family members in Mexico (see Abrego 2014; Boehm 2012); for people like Rene, they also mean ever-lengthening ties with family and community within the United States.

In the past, undocumented people who lived in the United States for long periods and could demonstrate close family ties to U.S. citizens were able to legalizetheir immigration status. Policy changes in the 1990sand early 2000s have now made it nearly impossible for millions of people to do so, regardless of their family ties or length of residence. Between border policies that hem them in and immigration policies that keep them "illegal,"there are more undocumented people living in the United States as members of mixed-status families-families that have undocu- mented, legallyresident, and/or U.S.-citizen members-than everbefore. In total, there are some 16.6 million people in the United States in

4 BECOMING LEGAL

families with at least one undocumented member (Taylor et al. 2011); if we assume a family average of 3.5 people, that means that the United States is home to more than 4 million mixed-status families.

Every year, more than 20,000 undocumented people in mixed- status families apply to legalize their status through consular process- ing (U.S. Department of Homeland Security 2013).Consular processing is the only family-based pathway to legal status for people who have entered the country without permission, and it requires the undocu- mented person to leave the United States and go to the U.S. consulate in their country of origin. When they do, all but a few trigger a lO-year bar on their return. Some undocumented people can have the bar waived if their U.S.-citizen relative can show that he or she would suffer "extreme hardship" in the event of a lO-year separation or relocation. If the bar is waived, the undocumented person can reenter the United States as a legal immigrant. Only undocumented people who have a U.S.-citizen or lawfully resident spouse or parent are eligible for a waiver of the lO-year bar, and those lucky few face a gauntlet of onerous criteria, complicated forms, expensive fees, and indefinite separation to reach-if their luck holds-lawful permanent U.S. residency at the end.

As they undertake this process, families confront onerous criteria for inclusion with lives that are already meaningfully included, and they must distort, degrade, and even jeopardize their relationships to stay together. Their experiences with consular processing reveal oft-hidden arenas of political contradiction, in which policies designed to reunite families force them apart, people deemed unworthy of U.S. citizenship are transformed into potential U.S. citizens, and policies that boost the value of U.S. citizenship degrade U.S. citizens in prac- tice. Together, they illuminate moments when legal exclusion and lived inclusion collide, bringing nuances and ambiguities of power into sharper focus. That process is the subject of this book.

The Argument In anthropology, the lives of transnational migrants are often described as being divided. They are "neither here nor there" (Striffler2007; Zavella 2011) or "half here, half there" (Boehm 2012), "in between" (Schuck 1998), or "in both places" (Gomberg-Munoz 2011).For undocumented people, the social and physical displacement of migration is com- pounded by political exclusion and marginality. Undocumented people

Four Million Families 5

are characterized as "impossible subjects" (Ngai 2004) and "alien citi- zens" (Bosniak 2006) who live "in the shadows" (Chavez 1992)of "spaces of nonexistence" (Coutin 2000a), where they are "abjected" (Gonzales and Chavez 2012;Willen 2007) by the state and reduced to a condition of "bare life" (De Genova 2010) and even "social death" (Cacho 2012).

This literature provides scholars of migration with a common lan- guage to discuss the experiences of unauthorized migrants who origi- nate from and settle in disparate places, and it has made a vital contribution to our understanding of how nationalist policies in the context of globalization can create new and pernicious forms of in- equality. In particular, recent ethnographies have examined how puni- tive immigration policies divide families across borders, revealing their effects on those who move and on those they leave behind (Abrego 2014; Boehm 2012; Zavella 2011). Here I shift the focus to families that are not divided by borders but are differentiated by status (see also Dreby 2015), complementing this scholarship with a look at how mixed-status families undertake immigration processing to stay safely together and, in the process, oppose their division and exclusion.

With this book, I contribute two arguments to the scholarship on unauthorized migration. First, I show how undocumented status is ex- perienced neither uniformly nor in isolation from other structures of political and socioeconomic inequality. Instead, undocumented people experience uneven measures of marginalization and belonging that are shaped by long-standing racial, class, sexual, and gendered u.s. in- equalities. I describe how these inequalities make it more difficult for some undocumented people to legalize their immigration status than others and how they continue to shape the opportunities of newly legal immigrants. I focus especially on growing linkages between u.s. im- migration and criminal justice systems, and I argue that these systems both reproduce racial and class inequalities and mask them with puta- tively race-neutral standards.

Second, I show how undocumented people and their U.S.-citizen family members forge connections across sociopolitical categories, as people who hold different statuses share in each other's lives. These connections pose a challenge to state policies that seek to neatly divide people into those who belong and those who do not, and they expose the incongruity that results when discrete categories are superimposed onto complex and intertwined lives. This incongruity comes into espe- cially sharp focus when couples undertake immigration processing

6 BECOMING LEGAL

and U.S. citizens find themselves at the center of immigration peti- tions. There, they learn that their citizenship offers little protection from stigmatization, bureaucratic indifference, financial ruin, and vul- nerability to prolonged family separation. In this process, immigration policies both uphold the value of U.S. citizenship in theory and de- grade U.S. citizens in practice.

Together, these points highlight both distinctions within citizen- ship statuses and linkages between citizens and noncitizens, offering balance to the recent trend in migration scholarship that has empha- sized the capacity of state policies to enact distinctions between "legal" and "nonlegal" people. Here, I seek to complement that scholarship with a reminder that immigration policies are never absolute or unidi- rectional but always interactive and contested "from below;" moreover, lives are never "bare" for those who live them, but always intercon- nected, meaningful, and complex.

For general readers and students, I hope that this book provides useful insights into U.S. immigration processing and the ways in which immigration policies affect undocumented people, lawful immigrants, and U.S. citizens alike. I also hope that this book helps readers more fully understand central questions in U.S. immigration debates, such as: Why don't undocumented people wait their turn to enter the United States legally? And, why don't they legalize their status once they have U.S.-citizen relatives? More broadly, I hope that this book augments readers' understandings of unauthorized migration with a look at how undocumented people are embedded in the same familial ties that en- velope all of us and give meaning to our lives as sons and daughters, parents and partners, and siblings and friends.

As scholars, we always tell one part of a bigger story. The story that I focus on here is not about border crossings, but about how people try to build a stable life where they are. And it is not a story of family separation or conflict per se, but of family members' struggles to stay together. A focus on agency, attachment, and commitment in a time of record-breaking deportation requires a tricky balancing act that neither minimizes the perils of illegal status nor underestimates the strength of human resiliency and connection. Although I focus on how families navigate immigration processing mostly voluntarily, I urge readers to keep in mind that their struggles take place as part of a broader system of forcible detention, deportation, and dehumanization that ensnares hundreds of thousands of U.S. immigrants every year.

Four Million Families 7

The Project This book presents results from a multiyear ethnographic project that explored how people undertake u.s. immigration processing and live in its aftermath. In many ways, this project is a continuation of a previ- ous study, in which I examined how undocumented workers in Chicago, including Rene, develop strategies to enhance their stability and well-being in light of their immigration status. Not surprisingly, my participants in that study lamented the constraints that undocu- mented status placed on their upward mobility and long-term security in the United States. In the months following the completion of that project, I became especially interested in how undocumented people's lives change when they become "legal" and, just as important, how their lives stay the same. That interest gave rise to this project.

When I put together a proposal to do an ethnographic study of people undertaking immigration processing, I was sure that I had the social connections to complete the research. After all, I began working in restaurants with undocumented people 20 years ago, and I have been active, on and off, in Chicago's immigrant rights movement ever since. Today, I continue to work with undocumented people on a daily basis, and I live as part of a mixed-status community.

But as I set out to recruit ethnographic participants in the spring of 2011, I quickly became stymied. I know many people who are undocu- mented, but almost none of them can change his or her status. SoI started the project by interviewing undocumented people who wanted to change their status and had at least looked into it, regardless of whether they were ultimately eligibleto legalize. I recruited 17people in that category and interviewed them in the summers of 2011, 2012, and 2013. By the end of my three-year field season, none of them had been able to get lawful u.s. residency. Three were granted Deferred Action for Child- hood Arrivals (DACA),2 attained a U visa, which is a kind of conditional visa, and 1 was deported. One young woman, Lily,was put in deporta- tion proceedings but then her case was closed; later, she applied for and received DACA. All of these study participants are of Latin American origin, and the overwhelming majority are from Mexico (Appendix A).

A few months into the research, I met Anya. Not only was Anya going through immigration processing with her husband, Enrique (Enrique was actually in Mexico for immigration processing when Anya and I met the first time), but also she was part of a support group

8 BECOMING LEGAL

with other mixed-status couples undertaking immigration processing. Between Anya's contacts and my own, I recruited a total of 25 people who had begun family-based processing, and I followed them over the course of the three-year field season. Eight of them adjusted their status successfully from within the United States. The remaining 17 under- took consular processing abroad; of them, 9 were ultimately successful, 7 were unsuccessful and now live either separately or outside of the United States, and 1 attained a conditional visa (Appendix B). This is a somewhat lower approval rate than the average; between 2010 and 2015, nearly 80 percent of mixed-status families who undertook con- sular processing were approved (Kowalski 2015).

To round out the interview portion of the research, I conducted interviews with another 17people who are either long-term lawful resi- dents or naturalized U.S. citizens, and I interviewed three immigration attorneys and three legal representatives accredited by the Bureau of Immigration Affairs, as well as staff members at five immigration legal clinics in Chicago.

In all, I conducted more than 100 interviews with 68 people. Most of them live in the Chicago area, and I went to see them where they live or work. I also interviewed people in other areas of the United States, including Atlanta, Indianapolis, Madison, and Washington, D.C., either after a long road trip or via Skype, phone, or email. Additionally, I interviewed 3 people who have been displaced indefinitely by immi- gration processing and live abroad, 2 in Mexico and 1 in Bolivia; these interviews were conducted via Skype, email, and telephone.

The U.S. Department of Homeland Security (DHS) reports that, in 2011, the U.S. Citizenship and Immigration Services (USCIS) adjudi- cated more than 23,000 hardship waiver petitions, about 75 percent of which, or more than 17,000,were processed in Mexico.' It is difficult to know whether the experiences of the mixed-status couples who I inter- viewed are representative of this larger population because data from the DHS do not distinguish between consulate applicants who have never resided in the United States and those who leave in an attempt to change their undocumented status. I suspect that my data are biased in that most of my undocumented participants who successfully adjusted their status were men who were petitioned by their U.S.-citizen wives. Data from the DHS indicate that nearly two-thirds of green cards for immediate relatives of U.S.citizens are issued to women; thus, undocu- mented women who have been petitioned by their U.S.-citizen hus- bands are underrepresented in my sample.

Four Million Families 9

My study participants are also largely members of nuclear family units, working or middle class, embedded in mixed-status or nonim- migrant communities, and generally well informed about immigration procedures. These characteristics-belonging in a nuclear family unit, social and cultural capital, and deep ties within the United States-are not incidental to their experiences with the U.S. immigration system. As I will show, mixed-status family members strategically draw on these qualities to strengthen their immigration cases. This is ironic, since it is precisely family unity, financial stability, and belonging in the United States that immigration processing most threatens to destroy. In all, I suspect that there is enormous diversity among the families who undertake consular processing and that the ethnoracial, familial, and class characteristics of my research participants are neither anom- alous nor necessarily representative of the larger population.

I took several steps to protect the privacy and confidentiality of the people who participated in this research. In particular, I changed all names and any identifying details of people and their processing expe- riences. In most cases, this at least involved fudging the exact dates of immigration appointments. In some instances, I worried that the spe- cifics of a legal case could be potentially identifiable; in those cases, I "switched out" some details, attributing parts of one family's case to another family and vice versa.

I also volunteered in an immigration legal clinic during the sum- mers of 2011, 2012, and 2013. There, I sat in on consultations, helped process DACA applications, and conducted case follow-up with the useIS. Those experiences were valuable in helping me develop an un- derstanding of the complexities of U.S. immigration processing, al- though as a matter of privacy, I do not relate any portion of client stories in this book. With permission from site administrators, I also joined an online support group for people undertaking consular pro- cessing. I call this group the Juarez Wives Club. The number of mem- bers in the group varied slightly over time, but on average there were about 600 members, with a few dozen especially active posters on the site. I used the site to gain a better understanding of prevailing ques- tions, concerns, and advice that people have as they go through con- sular processing, although I do not relate any personal information or stories shared on the site here.

I also had access to important legal documents as I conducted this research. Several families were generous in letting me look at their immigration packets, which included their family petitions, visa

10 BECOMING LEGAL

applications, and hardship waiver petitions. I downloaded blank ap- plications from the USCIS website to document the requirements and questions involved in immigration processing. I also read a manual entitled A Guide for Immigration Advocates that is published by the Immigrant Legal Resource Center. The staff attorneys at the center authored the manual and have done a wonderful job of clearly ex- plaining the ins and outs of complex policies. Finally, this project is informed by my life as a member of an extended mixed-status family and community. For many years, I have shared the struggles of friends and loved ones as they grappled with the u.s. immigration system.

I did not start this project intending to focus on mixed-status families; my interest was in how people experience U.S. immigration processing and its outcomes. But I came to understand that, for my study participants, immigration processing is a family affair: under- taken by people as members of families and with profound effects on all family members, regardless of their immigration status. Here, I showcase the stories not only of the undocumented people who are the intended beneficiaries of immigration processing, but also of the u.s. citizens who petition for them. Although in many respects family members undertake and experience the process together, their respec- tive contributions to and experiences with the process are shaped in different ways by citizenship status, social capital, and gender.

The Process u.s. immigration policies that govern legalization are complicated, opaque, and generally poorly understood, even by attorneys, state agents, and immigrants themselves. Before I describe how people in mixed-status families experience U.S. immigration processing, I provide a brief introduction to the steps and approximate costs and timelines for the two main family-based programs through which undocumented people can legalize their status.? These programs are only open to undocumented people who have u.s. citizens or lawful residents as "immediate relatives"; undocumented people without qualifying immediate relatives are largely unable to change their status under current immigration law. Immigration programs, timelines, and costs are ever changing, and this information was current during most of the fieldwork period (2011-2013) but has changed substantially since then. I discuss some of these changes in

Four Million Families 11

this book, but updated information can always be found at www .uscis.gov.

Undocumented people with qualifying relatives may be eligible for one of two main family-based immigration programs. Which program they are funneled into largely depends on how they entered the United States. Those who entered on a temporary visa, such as a student or tourist visa, and overstayed it can usually adjust their status through the first program if they have a U.S.-citizen spouse, parent, or child older than 21 years of age. Those who entered the United States by crossing the border unlawfully are not eligible for the first program unless they filed before April 30, 2001. Most undocumented border crossers, then, must go through the second program. As you will see, family ties and mode of entry into the United States have profound consequences for people's ability to change their immigration status.

Program One: Adjustment of Status under Section 245(a) Adjustment of status is a procedure that allows eligible immigrants to apply to change their immigration status at a USCIS office within the United States.

Undocumented people who meet two criteria can adjust their status under this program. First, they must have an approved family visa petition through a U.S.-citizen spouse, parent, or child older than 21, and second, they must be able to show that they entered the United States lawfully, typically with a temporary visa. Undocumented people who entered the United States unlawfully are not eligible for this program.

Steps to Legalization through 24S(a) Adjustment

Approximate Cost (in U.S.dollars; includes

Step Processing Time filing and attorney fees) location

1. Family petition (1-130) 3-6 months $1,000 United States (concurrent with 1-485)

2. Form 1-485 1 year or less $2,000 United States

3. Biometrics 1-2 hours $80 United States

4. Interview 1 hour 0 United States

Total <1 year $3,080

Total time outside the United States: None

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Program Two: Consular Processing Consular processing is a procedure that allows people to apply for lawful permanent residency at a U.S. consulate outside of the United States. Undocumented people who entered the United States unlaw- fully can go through consular processing if they have been approved for a family-based visa through a U.S.-citizen or lawfully resident spouse or parent. Those who entered with a temporary visa can also undertake consular processing if their petitioning family member is a lawful resident instead of a U.S. citizen.

Consular processing involves two main steps. The first step is for the undocumented person to leave the United States and attend an in- terview at the U.S. consulate in his or her home country. When they leave, all but a few are barred from returning. People who have been undocumented for between 180 days and 1 year are barred from the United States for 3 years; people who have been undocumented for 1 year or more are barred for 10 years. For both groups, consular pro- cessing involves the additional step of applying to have the bar waived, which requires a "hardship waiver" petition filed by a U.S.-citizen or lawfully resident spouse or parent.'

Steps to Legalization through Consular Processing (processing times for u.s. consulate in Ciudad Juarez, Mexico)

Approximate Cost (in U.s.dollars; includes travel, filing fees,and

Step ProcessingTime attorney costs) Location

1. Family petition (1-130) 3-6 months $420 United States

2. Leave the United >$1.000 States

3. Biometrics and medical 2 days $400 Abroad

4. Interview [barred from 1 hour 0 Abroad returning]

5. Hardship waiver (1-601) 3 weeks to $7,000 Abroad 18 months or more

Total 6 months to 1.5 years >$8,820 or more

Total time outside the United States: 3 weeks to permanent

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As I describe in later chapters, processing times and costs for immigra- tion programs can vary widely and unpredictably. The families I inter- viewed that undertook consular processing have been separated for periods ranging from three months to several years, and the process has cost them anywhere from $7,500 to more than $30,000 in fees, attorney costs, travel, and lost income.

As arduous as the process is, many undocumented people still cannot legalize through consular processing even when they have U.S.-citizen immediate relatives. For example, Rene has been approved for a family-based visa because of his marriage to Molly, but their at- torney has advised them not to attempt consular processing. This is because Rene was caught trying to reenter the United States after his most recent trip to Mexico. Rene and Molly have spent hundreds of dol- lars to track down Rene's immigration and criminal records, and they always come up clean. Still, their attorney advises them not to risk it. "Things come up in Juarez," she has warned them, and their application could be denied and Rene barred permanently from the United States. For now, Rene and Molly have decided to wait for a change in U.S. im- migration law, and until then, Rene will remain undocumented.

Here, I describe consular processing as my study participants ex- perienced it, but in March 2013, the consular processing system was changed. Instead of leaving the United States, attending an immigrant interview, and then submitting a hardship waiver application abroad, qualifying undocumented immigrants can do the waiver processing first from within the United States and then leave the United States for their consular interview. I discuss this change, called the provisional waiver program (1-601a),and its implications in more depth later, but preliminary data suggest that the new program both shortens separa- tion times for many families and has a lower approval rate than the regular (1-601)consular processing program.

The Book This book is organized to take readers on a journey through immigra- tion processing, as seen from the perspective of couples who undertake it. The second chapter, "Grounds for Exclusion," lays necessary ground- work with a historical review of U.S. immigration policies. This chapter examines how normative concerns about the racial, class, gendered,

14 BECOMING LEGAL

and sexual characteristics of new immigrants have historically shaped U.S. immigration laws, and it follows those concerns into the current period with a description of contemporary programs for legal immi- gration. The following chapter, "The Family Petition," explores how mixed-status families make the decision to pursue or not to pursue consular processing. I examine how divergent immigration statuses can affect family relationships, and I describe the myriad factors that families must weigh before they make the decision to file a family petition-the first step in family-based immigration processing.

The fourth chapter, "The Punishment," follows undocumented people to the u.s. consulate in Ciudad Juarez, Mexico, as they proceed to the second step in consular processing. I describe the barrage of test- ing that applicants undergo, as well as the immigration consequences of each test. This chapter shows that "illegal" is not "illegal" in the same way for everyone; instead, racial, gendered, and class-based anxieties continue to underpin u.s. immigration policy and practice, making it easier for some people to pass this stage than others. The fifth chapter, "Extreme Hardship," describes the third and final stage of consular processing: the hardship waiver petition. I show how mixed-status families are compelled to distort and demean their connections to each other and the places in their lives to demonstrate legally recognized extreme hardship. I also explore how opaque and arbitrary demands of consular processing have led to the formation of the Juarez Wives Club, an online community in which members share information and com- passion as they undertake immigration processing.

The sixth chapter, "Life after Legal Status," examines how families rebuild their lives when immigration processing is over. For families who are successful, I explore how newly legal status affects their ability to travel, work, and live securely; for those who are unsuccessful, I ex- amine how they attempt to reconstruct their lives apart or abroad. The concluding chapter, "Documented and Deportable," considers contem- porary trends in U.S. immigration policy. I explore some of the "fuzzy areas" oflegal status (Menjivar and Kanstroom 2014)with a look at the persistent vulnerability oflawful residents and the growing number of U.S. immigrants with conditional, temporary, or provisional statuses. Finally, I advance the argument that the U.S. immigration system is a comprehensive system of inequality that benefits some while wreaking havoc on the lives of mixed-status families and the undocumented population at large.

Four Million Families 15

Each chapter begins with a vignette of one family's journey through immigration processing, excerpted from my interviews and field notes. These vignettes are meant to help guide readers though processing from the perspective of families that undertake it, and each vignette also helps to illustrate the main analytical argument of the chapter. More important, these vignettes are meant to remind readers that law is never divorced from human interpretations, interactions, and experiences. Indeed, as the following chapters illustrate, members of mixed-status families experience law quite intimately, since immi- gration policy deeply shapes their relationships with each other and with broader u.s. society.

CHAPTER 3

The Family Petition

.CXn./hiIJ.czrzel Hector . Cynthia met Hector when she was a senior in high school. She was working part-time as a cashier at a small Chicago diner, where Hector's brother was the manager. Cynthia and Hector struck up a cautious friendship, speaking to each other at work functions or when Hector came into the diner to see his brother. After two years, they went on their first date.

Cynthia knew that Hector was undocumented, but she did not give it much thought at the time. Cynthia's parents were immigrants from Mexico -rhemselves, and migration stories were an important and respected part of her family history. Cynthia's older sister had married an undocumented person in 2007, and they were able to legalize his status through consular pro- cessing. Cynthia assumed that she and Hector would do the same if they ever got married.

Although Cynthia was not especially concerned that Hector was undoc- umented, Hector was. He felt embarrassed by his status, and he worried that limits on his opportunities would also hold Cynthia back-a worry that became more pronounced as Cynthia graduated from college and then en- rolled in medical school while Hector remained in a low-paid restaurant job. "Here you are, a medical student, and I'm working in the service sector." Hector would lament. "It was as ifhe felt less than me," Cynthia recalled. The shadow of his status affected their relationship in other ways as well. Cynthia

46

The FamilyPecinon 47

wanted to drive when they went out, because she worried that Hector would get arrested for driving without a license. But driving was an important part of Hector's independence, and Cynthia tried to respect that, too. As the one "with papers," Cynthia began putting bills and property in her name as they consolidated their households. She felt the pressure of taking on the house- hold responsibilities that Hector had to relinquish; the imbalance gnawed at both of them. Even in the absence of any dramatic encounters with police or immigration agents, the constraints associated with Hector's status marred their life together in subtle but ubiquitous ways.

After five years of dating, Cynthia and Hector got married in 2010. It was only then that the realization that Hector's constraints were hers, too, hit Cynthia hard. As the first person in her family to pursue an advanced degree, Cynthia saw no future for herself in Mexico. She worried that she might have to choose between her husband and her career if he got deported. She became anxious and depressed, trying to hide her feelings from Hector as she sought psychological counseling to manage her depression. And although she feared being separated from Hector, Cynthia agreed to begin the process to change Hector's immigration status.

Cynthia knew about consular processing as a result of her sister and brother-in-law's experience, and she knew that it was important to have a good attorney. As a first step. Cynthia made an appointment with the legal advisor at the university she attended. The advisor was "shocked" that Cynthia could not simply adjust her husband's status, and he could not recommend any attorneys who specialized in consular processing. Cynthia then turned to a friend of hers, a law school student, who recommended a highly respected immigration attorney who had written a book about immigration law. Cynthia and Hector booked a consultation with him. The attorney said that he was confident about their case; Hector had been arrested crossing the border but otherwise had a clean record, and the attorney assured them that USCIS had no reason to deny their petitions. Cynthia was still nervous and wanted to delay the process, but Hector was ready. Buoyed by the attorney's optimism, Cynthia and Hector began filing their paperwork for consular processing in the spring of2011.

The first step involved filing a family petition, or 1-130, which would make Hector eligible for a family-based visa. Cynthia and Hector gathered

48 BECOMING LEGAL

together dozens of documents: Hector's passport, both of their original birth certificates, Hector's parents' birth certificates, their original marriage certifi- cate, photographs of their wedding, and documentation of joint bank ac- counts and shared household expenses. Their attorney mailed all of their documents and supporting materials to USCIS in April 2011. The attorney also filed an 1-485, which is a petition to adjust Hector's status to lawful per- manent U.S. resident. One month later. they received a notice from USCIS stating that their 1-485 had been denied and that Hector had 30 days to leave the United States "voluntarily" or face deportation.

Shocked, they asked their attorney for an explanation. They eventually learned that Hector did not qualify to adjust his status with 1·485 because he had entered the United States unlawfully; when the attorney tried to adjust Hector's status within the country instead of sending him to the U.S. consul- ate in Mexico, a removal order was triggered. The law had changed in 2001, 10years prior. and the attorney was unaware of it. The good news, he informed them, was that they would still be able to pursue consular processing from Mexico. Hector and Cynthia called a family meeting and explained to Hector's parents and siblings-all of whom live in Chicago-that Hector had to leave abruptly for Mexico. Cynthia took a leave of absence from medical school so that she could go with him.

Cynthia and Hector spent the summer of 2011 in Mexico City trying to move forward with their immigration case. Their relationship was "very rocky" at this point, Cynthia says. She felt responsible for having chosen the attorney whose mistake banished Hector from his home and family in Chicago. She also felt distant from Hector, who had begun spending his days alone on his family's ranch to give her time to study. In August, Cynthia re- turned to Chicago. alone, to begin another semester of school. Abruptly, their attorney resigned their case to take a promotion at his firm, and Cynthia began the search for an attorney all over again.

In September, Cynthia received a notice requesting that she and Hector attend an interview together at the Chicago USe1S office. The purpose of the interview, called a "marriage fraud interview," was to verify that their marriage was in "good faith" before their family petition could be approved. Cynthia panicked. How could Hector attend an interview in Chicago when USCIS had ordered him to leave the country months before? And if he could not attend

The Family Petition 49

the interview, how could they prove their marriage was genuine? She called

USCISand wastoldby an agent to attend the interview alone. Shedid, bring- mg with her the letter mandating Hector's departure, as well as his airplane

boarding pass. At USCIS's Chicago headquarters, Cynthia sat in a small office

and answered questions about her and Hector's life together while an agent

reviewed their file. "Do you know that Hector is ineligible for I-485?" The agent asked her. "Yes," she replied, "We do now."

In November, Cynthia received the approval notice for their family

petition-Hector then became eligible for a visa. They began preparing for the

next step, his interview in Juarez, and they navigated their case and their rela- tionship in separate countries for the next year and a half..... , , , , .

Undocumentedpeople and us, citizens get married to each otherfor all of the usual reasons: some combination of love, sharedinterests and values, readiness to start a family, and societal and familial pressures. Proof of immigration status is not required for a mar- riage certificate, and undocumented people do not face any particular barriers to marriage in the United States. In fact, immigration status alone does not inhibit the ability of undocumented people to attain many of the trappings associated with a normative middle-class U.S. lifestyle, including bank accounts, credit cards, car loans, and mortgages.

Still, for mixed-status newlyweds, disadvantages associated with undocumented status manifest themselves in both tangible and intan- gible ways. Unable to work legally, undocumented people typically earn less and are more likely to live in poverty than their documented counterparts (Mehta et a1.2002; Passel and Cohn 2009). Insofar as rais- ing children and establishing a home require money, new families may feel constraints on their earnings more acutely than before. Moreover, starting a family with children raises the stakes of deportation by mul- tiplying its effects, leaving children especially vulnerable to profoundly negative emotional consequences of forced family separation (Dreby 2012; Hagan et al. 201l).

Thus, mixed-status couples must negotiate all the challenges of marriage and family, such as figuring out how to get along, managing household responsibilities, and parenting children, in a context of heightened financial insecurity and fear of separation (Dreby 2015). In the process, gendered and legal inequities can become especially pro- nounced. straining relationships and affecting decisions surrounding

50 BECOMING LEGAL

FIGURE 3.1 A U.S. citizen from Seattle visits her deported father in Mexico. Photograph by Steve Pavey, Hope in Focus Photography. www.stevepavey.com/.

immigration processing. When families do intend to go forward with immigration processing, gender and status differentially shape family members' relationships to the process and its burdens. This chapter considers the entanglements of gender and immigration status in mixed-status families and then explores the myriad factors that shape families' decisions whether to undertake immigration processing.

Gender, Family, and Status As mixed-status family members participate in each other's lives, they share material items, like money, food, clothing, and housing, as well as immaterial matters, such as affection, pleasure, anger, disappoint- ment, and fear. Immigration status is not independent of any of these; it permeates them all.

In intimate relationships, dimensions of citizenship and illegality commingle. U.S.citizens in mixed-status families can experience height- ened anxiety and depression, constrained upward mobility, limited access to social and health -care services, vulnerability to family separa- tion' and delayed long-term plans (Abregoand Menjivar 20II; Casteiieda

The Family Petition 51

and Melo 2014;Chavez 1988; Dreby 2012; Fix and Zimmerman 2001; Guelespe 2013; O'Leary and Sanchez 2011; Schmalzbauer 2014). For Cynthia, for example, anxiety surrounding Hector's status was twofold: she loveshim and does not want him to be deported, and she also does not want his deportation to jeopardize her career. As Hector's partner, Cynthia was heavily invested in both the process and the outcome of Hector's consular processing case. She explained, "Yes,it was my hus- band, but it was my career and my future here. So it almost felt like it was my case, and it was my immigration status." The multiple strands of con- nection that exist between mixed-status couples bind them together, breaking through the apparent impermeability of legal categories in meaningful but incomplete ways.

Still, if the shared fate of family members blurs the boundaries of status, it does not erase them. Status distinctions can cause tension be- tween family members, disrupt family relationships, and create or ex- acerbate inequalities and gendered exploitation within mixed-status households (Chavez 2008; Dreby 2015; Salcido and Adelman 2004; Zavella 201l). For couples that strive to achieve relative equality in their relationship, such as Cynthia and Hector, being mixed status means negotiating uneven burdens of responsibility. When only "legal" part- ners can drive lawfully. purchase insurance, open accounts, or travel safely, then those tasks will tend to fall disproportionately to them; as undocumented partners take on a reduced role in the household, they are subtly disempowered in relation to their lawful relatives.

Inequities related to immigration status also havecomplexethnoracial and gendered dimensions. One Chicago-based study of undocumented workers found that, all elsebeing equal-including occupation, education, U.S.work experience, and English-language proficiency-undocumented Latin Americans experienced statistically significant wage penalties for their immigration status, whereas undocumented Eastern Europeans (who are racialized as "white") did not (Mehta et al. 2002). And within Latino immigrant communities, gender, ethnic, and class differences heighten the marginalization of women, indigenous, and impoverished migrants (Fussel2011;Holmes 2013;Stephen 2007).Notably, the Chicago study found that undocumented Latin American women fared the worst of all immigrant groups, both in unemployment rates and in wages earned, and the combination of undocumented status, Latin American origin, and female gender expression together increased the likelihood of unemployment by 220 percent (Mehta et aJ. 2002).

52 BECOMING LEGAL

In fact, lawfully resident Latin American women experienced higher wage penalties than undocumented Latin American men, suggesting that, among Latin American immigrants, gender is a more significant constraint on upward mobility than immigration status (Mehta et al. 2002). In all, broader ethnoracial and gendered inequalities are not erased by immigration status so much as absorbed into it, connecting experiences of undocumented status to other structures of socioeco- nomic inequality.

Since undocumented people in general, and undocumented women in particular, are plagued by financial instability, their dependence on working family members is heightened and can exacerbate their vul- nerability. Lourdes's story helps illustrate this complex relationship among financial insecurity, gendered vulnerability, and immigration status. Lourdes came to the United States with her mother and younger brother when she was a child. Lourdes's mother, who was a teacher in Mexico, struggled to find steady employment as an undocumented worker in Chicago, and the family lived in poverty for many years. Then, Lourdes's mother began a relationship with an undocumented man and eventually moved her family in with him. With two incomes, their financial stability improved markedly. But at 12years old, Lourdes was sexually assaulted by her stepfather, and he regularly raped her over the next six years. Lourdes never told anyone, not even her mother, and she explained that she endured the abuse in silence for two main reasons. First, she was afraid that if she told her mom, her mom and stepfather would fight and her mother could be hurt. But also, she says that she knew that if she reported him, her stepfather would be deported, and her family would be plunged back into poverty. In Lourdes's case, her mother's financial insecurity, related to both her gender and her immigration status, heightened Lourdes's vulnerability to abuse.

Within mixed-status families, disproportionate rates of arrest, detention, and deportation of men undermine men's ability to finan- cially and emotionally provision their families, with the potential to disrupt gendered family roles (Dreby 2015). Cynthia, for example, was conscious of Hector's disempowerment and tried to respect his inde- pendence by not opposing his wishes to drive-although she agonized when he did. She is not alone. Joanna Dreby (2015) found evidence that U.S.-citizen women with undocumented husbands conform more

The Family Petition 53

closelyto gendered household expectations than undocumented women with undocumented husbands. Dreby suggests that U.S.-citizen women may be trying to compensate for their husbands' disempowerment vis- a-vis the state by bolstering gendered roles in the home. Together, this evidence suggests that state policies permeate mixed-status families, seeping into the ways in which family members navigate their intimate relationships.

Family-based immigration processing only intensifies the depen- dency of undocumented people on their lawfully resident partners by tying petitions for residency to U.S.-citizen or legally resident relatives. For example, Veronica came to the United States with a temporary visa to do community work for a binational (Mexico-U.S.) organization. She entered into a relationship with Francisco, a U.S. citizen, and after four years, they married and he filed a petition for Veronica's residency. That's when "strange things began happening," she says, and Francisco changed toward her. He could be sweet and kind one day and cruel or indifferent the next. He began seeing another woman and flaunted his infidelity in front of Veronica. When she demanded that he move out of their apartment, he threatened her. "I'm not going anywhere," Francisco replied. "Understand this: if! leave, immigration will follow you, and they will deport you, because your case is with me." Over the next two years, Francisco held the threat of immigration enforcement and the promise oflegal status over Veronica's head, using it to keep her in the relationship. "My papers are my gold," he would gloat. Once, when Francisco threatened to call the attorney and have Veronica's visa petition closed, she told him that it was "not for [him] to decide" where and how she could live. But her words were empty, and they both knew it. With Veronica's visa petition in his hands, Francisco wielded nearly complete power to secure or deny her lawful status.

When undocumented women attain lawful status, getting "papers" can shift the gender dynamic of their relationships. For example, Gume, a Mexican woman in her sixties, said that attaining lawful resi- dency has transformed her relationship with her abusive husband. "I'm not how I was before, timid, nervous, all of that," she told me, "Because I don't depend on him anymore. I have my driver license, I go where I want, I don't have to ask his permission." But above all, Gume says, now she feels able to call the police if her husband is violent toward her. She says, "Sometimes he would make fun of

S4 BECOMING LEGAL

me, like 'Oh! I can't touch you because you're going to call the cops.' [I told him.] 'That's right. ... They'll arrest you and if you get out and hit me again, I'll have you arrested again. You'll be in jail and I'll be in the grave. If that's how you want it, that's how it will be. You will not touch me again." With the fear of deportation lifted, Gume is empowered to stand up to her husband, even bringing in state authorities to help protect her, if necessary.

But existing research has also shown that gendered disparities may make it more difficult for undocumented women to legalize their status than men. In her research with people undertaking legalization through IRCA's 1986 amnesty provision, Jacqueline Hagan (1994) found that undocumented women faced a series of extra hurdles to legalization. In particular, undocumented women had less robust social capital, which provided an important source of information about the application process, and women were more likely to work in the informal sector and thus less able to produce proof of continuous residence since 1982,which IRCA required. Nearly two decades later, Salcido and Menjivar (2012) found evidence that women continue to face gendered barriers when they attempt to lawfully immigrate to the United States.

However, in the current period of mass detention and incarcera- tion, greater policing of immigrant men may disproportionately en- cumber them when they attempt to change their immigration status. Men are many times more likely than women to be arrested for crimi- nal and immigration violations and deported from the United States (Dreby 2015; Golash-Boza and Hondagneu-Sotelo 2013; Western 2006), and my research suggests that criminalization of men makes them more likely to have a criminal or immigration record that renders them ineligible for processing (Gomberg-Munoz 2015). And as I ex- plain in the next chapter, even men who are eligible for processing are often suspected of substance use, gang affiliation, and criminality by immigration agents who can deny their applications based on those suspicions. When I asked one Chicago-area attorney whether there were any factors that make it easier for some applicants to change their status than others, she immediately responded, "Gender. Gender. Women get it a lot easier. Women get the waivers quicker." She contin- ued, "Until quite recently ... any young man that went for their medi- cal was treated as a drug abuser .... And in their medical exam [results] that they present to the consulate the next day, it says, 'This person is a

The Family Petition 55

drug abuser." In the current period, greater criminalization of men and greater financial insecurity of women create significant, but differ- ent, gendered barriers to legalization.

Deciding to Legalize Given that undocumented status both constrains financial security and makes families vulnerable to forced separation, it should not be surprising that many mixed-status couples seek to undertake immi- gration processing soon after their wedding. And with marriage to a U.S.citizen, undocumented people reach that first critical milestone on the road to legal status: they now can apply for a family-based visa. Still, despite the pervasive and profound insecurities associated with undocumented status, the decision to pursue legalization is not neces- sarily obvious or straightforward. In fact, although undocumented status is a source of repression and constraint, it can also be "strangely liberat[ing]" in that undocumented people are in certain ways outside of the system (Coulin 2000a). And for some undocumented people, the risks and costs of undertaking immigration processing are simply not worth it.

When I began this project, 1 reached out to Lily, a former student of mine who had once told me that she did not let her undocumented status be a defining part of her life. 1 was intrigued by her comment, and 1wanted to talk with her more. Lily agreed to be interviewed, and I met her at her home on Chicago's southeast side, adjacent to expan- sive nature preserves. Although Lily had recently married Carl, a U.S. citizen, she said that she was not interested in trying to change her status. Instead, she explained, she is focusing on other things, like taking care of two younger siblings who had recently moved into her home. Lily said that she tries not to concentrate on the limitations of her status; instead, "I try to compare myself to people who don't have what I have, with people who are poorer than me, or ... are worse off.... And when you take all that into consideration, for me being undocumented is not that big of a deal after all." Unfortunately for Lily, events beyond her control would disrupt her tranquility and, as 1dis- cuss below, force her into processing before my project's field season was over.

Even for those who aspire to lawful status, undertaking immi- gration processing can be a daunting prospect. Processing requires

56 BECOMING LEGAL

undocumented people to expose their presence to the U.S. government, register with immigration authorities, and have their fingerprints taken and their records run; for these reasons, immigration processing initially increases, not decreases, the risk of deportation (see Coutin 2000a, 110). Furthermore, consular processing forces undocumented people to leave the United States and automatically bars them from returning for 10years; even those who are unlikely to be deported still run the risk of long-term separation from their U.S. families. As one woman, Kaitlin, explained, "Coming out of the shadows is what gets you in trouble. You can live under the wire. It's when you go to try to get legal, that's when you get the bar." And unlike deportation, which is a forced and unanticipated removal, consular processing involves de- liberately and voluntarily removing yourself from the United States and separating yourself from your loved ones. Those considering con- sular processing must measure the risk against the potential benefits of lawful status and find it worthwhile to take the risk. This decision is not made lightly, and families must carefully consider several questions before they embark on immigration processing.

Do We Have the Right Kind of Family, The family reunification system privileges some family configurations over others, limiting eligibility for a visa to select legally recognized family members of U.S. citizens and lawful residents (Boehm 2012; Enchautegui and Menjivar 2015). As I explained in the previous chap- ter, only applicants who have a U.S.-citizen spouse, parent, or child older than 21 are considered "immediate relatives" and become imme- diately eligible for family-based immigration. Everyone else must either wait in line, including "immediate relatives" oflawful residents, or be excluded from family-based immigration altogether.

Because the U.S. immigration system prioritizes "family reunifica- tion," it reproduces a certain ideal of "family:' with attendant assump- tions about gender, sexuality, age, and biological relatedness. Kinship configurations that fall outside this ideal are largely excluded from the family preference system. Kaitlin and her partner, Noe, for example, do not wish to legally marry; if they hold to this wish, Noe will never be eligible for a U.S. visa through Kaitlin. In another example, consider Luis, who came to the United States as a child with his mother. After several years of living in the United States undocumented, Luis's mother married a lawful resident and had two U.S.-citizen children

The Family Petition 57

with him. Luis's stepfather naturalized as a U.S. citizen so that he could petition for Luis's mother, who eventually gained lawful status through consular processing. By this time, Luis was already an adult and thus excluded from his mother's application. Now, because he "aged out" of his mother's application, Luis is the only member of his family who is undocumented. To make matters more complicated, at the time of my first interview with Luis, in 2011, there was also no pathway for him to change his status through a spouse because he identifies as gay.

Although identifying as gay or lesbian ceased to be a legal barrier to U.S. immigration by 1990, the U.S. federal government did not rec- ognize same-sex marriage until 2013, leaving U.S. citizens unable to petition for their same-sex spouses. Then, in 2013, the Defense of Mar- riage Act was repealed, opening the legal possibility that people like Luis could marry a U.S. citizen and adjust through a spouse. The repeal of the Defense of Marriage Act is historic and a potential game-changer for thousands of people in same-sex, mixed-status relationships, but not, as it turns out, for Luis. By2013,Luis had fallen in love with David, who, like him, had come to the United States without status as a child. Because both Luis and David are undocumented, even if they legally marry, neither will be able to petition for the other.

Indeed, the legal erasure of undocumented people in the United States means that no matter how many family members an applicant has in the United States, if those family members do not have the "right kind" of status themselves, they can neither file nor support an immi- gration application. Take Hector's family as an example. Hector's par- ents and Siblings all reside in the United States with their spouses and children; yet because they are not U.S. citizens, none of them can peti- tion for Hector, and he cannot petition for them. This makes Cynthia the only one of Hector's many relatives who can file a petition for his immigration, and it means that the rest of his family must be erased from her application. Their existence could actually be detrimental to Hector's case, despite the central role that their presence plays in Hector and Cynthia's everyday life.

This is not the only way in which immigration criteria can distort families' realities. Applicants can also move from one immigration category to another as they age or marry, and determinations about who is eligible for which category and when can seem arbitrary. For example, Abril came to the United States with her widowed mother when she was a child. Soon after their arrival, Abril's mother married a

58 BECOMING LEGAL

lawful permanent U.S. resident, and he filed a family petition for her based on their spousal relationship. Because Abril was a minor child, she was included in that petition, but the attorney handling their case erroneously told them that Abril was not eligible for a visa at the time. Years later, when Abril applied for DACA four months shy of her 21st birthday, an astute staff member at the legal clinic realized the mistake just in time. At 21, Abril would be considered a legal "adult" and would no longer qualify under her stepfather's application; with the clock ticking, clinic staff expedited her petition. Twelvedays before her birthday, Abril had an interview with an immigration agent and was approved for lawful permanent u.s. residency. "I was saved by the bell," she recounted, "Oh, man. I could not believe it." If Abril had vis- ited the legal clinic only two weeks later, she would have aged out of the original petition and become ineligible to change her status.

Although only select family relationships are recognized for the purpose of immigration, the categories of family members who can pe- tition for undocumented relatives are further narrowed. U.s. citizens can file a petition for their spouses, parents, children, and siblings (lawful residents can petition for spouses and unmarried children but not for parents, siblings, or married children) who are abroad or in the United States lawfully on a temporary visa, but only U.S.-citizen par- ents and spouses (and in select cases, children older than 21) can peti- tion for undocumented relatives.' Thus, undocumented people with pending family petitions through, say,a sibling, wonld be eligible for a visa if they had never entered the United States or lived here unlawfully, but become ineligible for the visa because they are undocumented.

If you find this confusing, you are not alone. Indeed, this system creates substantial confusion about who is and who is not eligible to legalize their status. Let us take juan's case as an example. juan is a factory worker on Chicago's south side who has lived in the United States since 1995. His sister adjusted her status to lawful resident through her husband and then naturalized as a U.S. citizen in 2008. She promptly filed a family petition for juan. When juan's visa does become available-the current wait time for Mexican siblings is 18 years, so he has some 12 years to wait still-he will have to go to Mexico to get it; there is no process for him to get a family-based visa through his sister in the United States. When he leaves, he will trigger a lO-year bar on his return. Because siblings cannot apply for a waiver of the bar, juan will have to remain in Mexico for the full 10 years

The Family Pericion 59

before he can return lawfully. In the current period, undocumented people without a U.S.-citizen spouse or parent have little chance of ever being able to change their status.

In all, as Deborah Boehm (2012) has pointed out, the family reuni- fication system fails to treat families as a unit and instead creates a complex hierarchy of individual relationships and statuses that privi- leges some people and families over others. And the select few who have a qualifying relative have only reached the first step to lawful status. Many hopeful immigrants, and undocumented people in par- ticular, find themselves ineligible to legalize their status regardless of their family relationships to U.S. citizens.

Are We Eligible, Every week, new clients visit the legal clinic where I volunteer only to receive discouraging news: "No, sorry, there is nothing that you can do." Undocumented people who thought they might be eligible for im- migration processing are summarily and unequivocally turned away on a regular basis. There is a profound mismatch between common perceptions of immigration processing and its more bleak reality.

U.S. immigration policy is both complex and opaque, and few nonexperts understand it well, including many immigration attorneys and federal agents, as well as immigrants and their family members. Because U.S. immigration law is complex and ever changing, getting accurate and reliable legal advice is a critical initial step. Unfortunately, getting good counsel can also be difficult. Immigration law is a highly specialized subsection of law, and legalization of the undocumented is a highly specialized subsection ofimmigration law. Not just any attor- ney will do. Even immigration attorneys who specialize in, say, em- ployment visas for overseas immigrants may be poorly qualified to take on a consular processing case. To make matters worse, there are plenty of attorneys and notary publics who are only too eager to take advan- tage of hopeful immigrants. Notary publics, in particular, are known to exploit undocumented people by presenting themselves as capable of handling immigration cases (Mahler 1995), a claim that is facilitated by a misleading cognate-notarios in Latin America typically have legal training, and many are registered attorneys. In best case scenar- ios, unscrupulous attorneys and notaries take money for cases that have no hope of moving forward; in worst case scenarios, they send prospective immigrants with weak cases to consular interviews in their

60 BECOMING LEGAL

home countries, where they find themselves summarily barred from returning to the United States and separated from their U.S. family members.

Choosing a qualified and reputable attorney is essential because no two consular processing cases are alike. Even apparently minor varia- tions between cases can make the difference between approval and denial. Take Rene as an example. Rene and Molly initiated the process in 2009 by filing a family petition, which was approved, but their case has been stalled at that first stage ever since. Rene's brother, Chuy, on the other hand, successfully attained lawful status following his mar- riage to a U.S. citizen in 2010. What was the difference between the brothers? Although they both entered the United States unlawfully, Rene entered twice and was caught at the border both times. Chuyen- tered once and was not caught. Although Rene has been here longer than his brother and has a U.S.-citizen wife and three U.S.-citizen chil- dren, he and Molly are still unable to go forward with their case. After Chuy attained lawful status, Rene and Molly even consulted with Chuy's attorney, hoping to get more encouraging legal counsel. But the attorneys agreed: at least for now, Rene's best option is to remain un- documented and hope that he does not get deported-although, ironi- cally, being put in deportation proceedings could improve his and Molly's chances at legalization.

Because of these nuances, as well as the criminalization of migra- tion and hopeful immigrants' need to prove their good moral character, details such as number, date, and nature of arrests are critically impor- tant. The first appointment with attorneys usually consists of a baffling list of apparently trivial questions: When did you first enter the United States? How did you enter the United States? How many times have you entered? What are the dates for each entry? How many times have you been caught? Did you sign any forms? Have you ever claimed to be a U.S. citizen, even on a job application? Have you ever been arrested within the United States? When and why? Each arrest, even for an in- fraction like driving without a license, is like so many marks on a chalk- board that, together, steadily decrease the likelihood of an approval. Attorneys must evaluate this record as a whole to assess the risk of moving forward with a case and the probability of success in the end.

Despite their critical importance to immigration processing, these questions can be difficult for applicants to answer accurately. Take Rene, again, as an example. Rene came to the United States 20 years

The Family Petition 61

delnmigraci6n ARRESTADOY NO NOS DICE,~

!!

I

IF YOU HAVE EVER BEEN ARRESTED AND FAIL TO LET US KNOW ,

YOUCOULD BE DEPO~D!!

FIGURE 3.2 You could be deported! A sign at the legal clinic.

ago, returned to Mexico a little more than 12years ago, and then reen- tered the United States. Thus, for Rene, he has come to the United States twice. But on both occasions he was caught at the border several times-he is not sure how many, but estimates eight or nine times in all. He thinks that all of these arrests resulted in a "catch-and-release" process that did not include a formal removal, but since Border Patrol agents did not explain what was happening to him, it is hard for him to know for sure. And knowing is critical. If Rene were to move forward with the next step in immigration processing, immigration agents would be likely to ask him about each and every arrest on the border, including the dates and outcomes of each. If Rene's descriptions of these arrests do not match DHS records exactly, immigration agents are likely to think that he is lying and punish him accordingly. For Rene, the point is all but moot, however, since a Single arrest on the border after being in the United States unlawfully for a year is enough to earn him a permanent bar on reentry and a permanent separation from his wife and children-it is hard for him to think of a worse pun- ishment than that.

For many couples, the decision to move forward is delayed until attorneys can run a fingerprint check and/or submit a Freedom of

62 BECOMING LEGAL

Information Act request for DHS records. Until couples and their at- torneys are absolutely sure what the applicant's record looks like, they cannot accurately assess the risk of processing. And even when immi- gration records come up "clean," there is a risk that the records held by immigration agents will include information that previous checks have missed. Thus, although Rene's fingerprints have been run twice and his record appears clean, his attorney still advises him and Molly not to risk consular processing.

A detailed history is important for another reason: sometimes it turns up details that help a case. In particular, applicants may have an obscure family petition that has been pending for several years and, if so, they may qualify for immigration benefits that they were unaware of. During intake sessions for DACA processing in 2012, for example, staff members at the legal clinic found several instances in which DACA applicants like Abril are actually eligible to apply for lawful residency.

Finally, families and their attorneys must consider whether U.S.-citizen or lawfully resident petitioners will be able to build a com- pelling case for their extreme hardship. As I explain in more depth in Chapter 5, extreme hardship is a subjective and moving target, but it must rise above the level of "normal" hardship that one would expect to result from a to-year separation. This puts families who are largely healthy and financially stable at a disadvantage, since it may be more difficult for them to convince immigration agents that the petitioner's suffering during a family separation should be considered extreme.

Although eligibility to legalize begins with a qualifying family member, it also requires the ability to meet a host of other tests, includ- ing proving the immigrant's good moral character and the U.S. citi- zen's extreme hardship in the event of a to-year separation. Initial consultations with attorneys thus involve a careful assessment of the family's entire history in the United States before a decision to move forward with processing can be made. In these early stages, another characteristic of mixed-status families becomes central to their deci- sion to pursue legalization: their socioeconomic status.

Can We Afford It, For the select families who have a strong case, one of the most significant hurdles that they face is cost. Mixed-status families often come away from initial legal consultations in a sort of sticker shock, unprepared for the massive expense that consular processing incurs. For some, the cost

The Family Petition 63

oflegalization is simply out of the realm of possibility. Others must delay processing to save enough money. For families that do go forward, the expenses associated with immigration processing can accrue quickly and havea lasting impact on their financial security.

Some processing costs are relatively fixed and transparent, allow- ing couples to anticipate and budget for them. For example, applicants must submit USCIS filing fees for each form, As of 2014, the fee to file a family petition is $420. For undocumented people who entered with, and then overstayed, a temporary visa, filing an 1-485for adjustment of status costs $985. For undocumented people who entered unlawfully and then attempt consular processing, the hardship waiver fee is $585. The fee to run applicants' biometrics is $85. For successful cases, the fee to have the visa issued is $165. For unsuccessful cases, filing an appeal costs $630.All of these fees go into the coffers of federal agencies, either the Department of State or the DHS.

For undocumented people who overstayed a temporary visa and then adjust their status within the United States, filing fees constitute about a third of the direct costs for immigration processing. Attorney's fees, which range from $2,000 to $3,000, comprise most of the remain- der. For undocumented people who entered unlawfully and must go through consular processing, attorney fees for the waiver packet alone averaged between $5,000 and $7,000 in the Chicago area during my fieldwork period. The lowest attorney fee that [ encountered for a waiver packet was $1,500, charged by an immigration attorney who was just starting out. Cynthia and Hector paid $3,000 for their first attorney, which is relatively inexpensive, but the error that he made cost them many times over. When Cynthia and Hector changed attorneys, the cost went up dramatically; their new attorneys charged them $150 an hour for consultations and $15 per email to answer requests for infor- mation. The most expensive attorney fee that [ came across was $10,000, paid by a couple in the Juarez Wives Club; other members of the group agreed that a $10,000 fee was higher than the norm. Although already a significant cost, this fee is only for the attorney to assemble an initial packet; legal fees for cases that require extra work or appeal can multi- ply considerably and last indefinitely.

Some couples try to reduce the cost by putting together the waiver packet themselves; this is risky, time-consuming, and arduous, but pos- sible. One young woman in the Juarez Wives Club learned so much immigration law by putting together her husband's consular processing

64 BECOMING LEGAL

case that she later went to law school and became a licensed immigra- tion attorney. Other couples seek help from nonprofit legal clinics, but the work involved in assembling a hardship waiver packet makes it cost- prohibitive for many community-based organizations. The Illinois Co- alition for Immigrant and Refugee Rights provides a list of 14nonprofit agencies in Chicago accredited by the Board of Immigration Appeals that provide legal services for immigrants; of these, only 4 do waiver packets, and then only a limited number per year.

As the process grinds on, the relatively stable expenses of filing and attorney fees are compounded by more variable, less predictable costs. After approval of the family petition, immigrants must travel to and from the U.S. consulate in their home country. In Cynthia and Hector's case, they purchased two airline tickets from Chicago to Ciudad Juarez, Mexico, and then two more tickets from Juarez to Mexico City, where Hector awaited tbe waiver decision with some extended relatives. Cynthia then flew back to Chicago, whereas Hector had to travel back and forth between the U.S. consulate in Juarez and Mexico City on two more occasions. Their final transportation cost was Hector's one-way ticket back to Chicago-the only one thatthey were happy to pay.All told, Cynthia and Hector spent close to $3,000 in airplane travel alone.

The hotels near the U.S. consulate in Ciudad Juarez, such as the Quality Inn and Best Western, charge about $45 for a night's stay. Most families do not remain longer than necessary in Ciudad Juarez and return to the undocumented spouse's hometown to wait while their case is pro- cessed. A prolonged stay in Mexico multiplies the cost of processing. Lucky couples have family members who will house them. Others must rent an apartment or room. Additional daily costs include food, local transportation, and miscellaneous expenses. And staying in Mexico incurs an indirect expense: lost income. Some couples only lose a month of income; others lose ayear or more. Hector was in Mexico for 18months and lost more than $50,000in wages.Enrique was in Mexicofor 6 months, setting him and Anya back about $20,000 in his lost income.

Since there is no reliable way to predict how long processing will take, there is no unfailing way to budget for it. Many applicants arrive in Mexico expecting to return to the United States fairly quickly, only to watch their cases stall and their savings dwindle. Some then seek work in Mexico. Enrique, for example, got a job in a pizza parlor to defray the costs of his living expenses in Mexico. Hector tried to find informal work in construction. But landing a good-paying job in

The Family Petition 65

Mexico isnot easy for most Mexican workers, and those who have lived in the United States for many years often no longer have the documents that prove their work eligibility in Mexico. And since their Mexican birth certificates and passports are tucked away in a file at a U.S. im- migration office, they find themselves "illegal in our own country:' as Enrique put it, which makes finding a job even harder.

While their cases are processed, U.S.-citizen spouses thus become de facto heads of households and often must support their spouses who are in Mexico. The longer processing takes, the more expensive this becomes. Anya and Enrique budgeted for a 3-month separation, and when their savings ran out, Anya took on a second job. So did Tanya, whose husband Marco was in Mexico for 18months. Marco and Tanya and Anya and Enrique also racked up credit card debt, as did most of the couples that I interviewed. Cynthia moved back home with her par- ents to savemoney, and she and Hector watched their debt climb to the ceiling. One young woman, Beth, moved to Mexico with her husband, Jorge, in an effort to keep their household together while his case was processed. Jorge began working in hospitality and Beth found a job teaching English. But their income in Mexico was not enough to cover the filing fees and payments to their immigration attorney, and Beth eventually had to leave Jorge to resume working in the United States; she also took on a second job. In total, Beth estimates that they spent more than $30,000 on immigration processing-most of it paid for with credit cards. Marco and Tanya spent about $20,000 altogether. I asked Cynthia how much immigration processing has cost her and Hector. "1don't even want to think about it," she replied.

The high cost and uncertain duration of consular processing pushes it out of the reach of many working families; it is no coincidence that most of the mixed-status families profiled here have two incomes and are middle class. And even families who begin this process with a modicum of financial security will often go broke after years of filing fees. attorney costs. and interrupted income. Thus, intentionally or not, consular processing reproduces class criteria that have long been part of U.S. immigration policy: prospective immigrants must pay to play.

Is It Worth Ie If the financial costs of consular processing are prohibitive, then the emotional costs are even higher. Consular processing with a hardship waiver involves several layers of pressure, each one stressful enough by

66 BECOMING LEGAL

itself, which implicate all members of the family, including children. The work to put together a case is difficult, time-consuming, and ex- pensive. And undertaking consular processing is uncertain; it requires families to separate without a clear idea of when they will see each other again. One Chicago-area immigration attorney said that she cau- tions new clients, "If you are going to embark on this, you have to pre- pare for a separation from your family.... I cannot guarantee that your case is going to be granted and or when it's going to be granted. And if you do this, if you start this, there is a possibility that you are going to be separated for ten years." This news can be hard to hear. New clients at the legal clinic are sometimes stunned that their options are so lim- ited. "But I have been living here for years. Isn't there anything else that we can do?" they ask. "Nothing. Not unless the law changes," the legal clinic director tells them, passing flyers for upcoming events across his desk. "Go to the [immigrant rights] marches. And tell your U.S. citizen relatives to vote."

Families that take on consular processing must accept the risk of prolonged family separation or relocation. The stakes are high, and nothing is guaranteed-not the timeline, not the costs, not the outcome. This uncertainty takes an enormous emotional toll on families in the process, a toll that I discuss in more depth later. For some families, such as Lily and Carl or Rene and Molly, undertaking processing is simply not worth it.

When Immigration Processing Is Not a Choice Many couples do not have the luxury of freely deciding whether to pursue processing, but are compelled to undertake it after contact with police or immigration authorities. For couples like Anya and Enrique, the expense of arrests following traffic stops, as well as the heightened fear that contact with police could result in deportation, pushes them to pursue processing when they might have otherwise waited. Other couples, including Lily and Carl and Jorge and Beth, find immigration processing forced on them by a deportation case. One attorney I spoke with estimated that about half of his clients were pushed into immigra- tion processing by a deportation order. For these families, the stakes are even higher, the road to lawful status even bumpier, and the process even riskier. An in-depth analysis of the ramifications of deportation is

The Family Petition 67

outside the scope of this book (but see Brotherton and Barrios 2011; Coutin 2007; Golash-Boza 2015; Hagan et al, 2011; Kanstroom 2014), but in the final section of this chapter I share the stories of two couples, Lilyand Carl and Beth and Jorge, to illustrate how a deportation case can affect immigration processing.

When I left Lily's home in the summer of 2011, she was largely uninterested in pursuing consular processing. But that December, whenLilyand Carl took a vacation to spend Christmas with Carl's par- ents, their life was turned upside down. Lily and Carl decided to drive to Carl's parents' house in northern Michigan to avoid the risk of en- countering immigration agents at the airport. But as they were driving near the u.S.-Canadian border, they were rerouted around a construc- tion zone. Before they realized what was happening, they had crossed into Canada; when they turned around to go back, Lilywas detained at the border. After seven hours, U.S. immigration agents released her to Carl, but they had put her under an order of deportation.

For the better part of a year, Lily and Carl fought the deportation. Their case had at least four significant advantages: first, Lily was al- ready married to a U.S. citizen; second, she had no record of criminal or immigration violations; third, she was let out on bond, not put in a detention center, so she and Carl could take their time to fight the case; and fourth, they had enough money to hire a reputable and experi- enced attorney. Even the immigration agent who filed the deportation charges encouraged Lily to contest the case, telling her, "We have to open up this [deportation] case, but you don't have any record. You should be able to get a lawyer and go and fix your status." Lily's attor- ney requested that ICE administratively close Lily's case, which they ultimately did. Administrative closure means that ICE is declining to pursue her deportation, but it did not give Lily any status or any guar- antee that her deportation will not be pursued in the future.

After that scare, Lily applied for and received DACA, which is a program for undocumented youth who arrived in the United States as children. DACA grants recipients a reprieve from deportation and a work permit as long as they maintain a clean record; it is good for two years, and when it expires, the recipient can reapply. DACA does not grant lawful status or make the youth who receive it eligible for lawf~I status in the future. Still, Lily feels a bit more secure now, which IS especially important because her mother was arrested and put into

68 BECOMING LEGAL

deportation proceedings, leaving Lily responsible for the care of her two youngest siblings-both U.S. citizens by birth.

When I interviewed her for the last time in the summer of 2014, I asked Lily whether she ever plans to do consular processing with her husband. "Oh, sure," she replied, "[But] [ don't want to do it now.... It would be nice to be able to apply without having to go through a whole process of going to Mexico and coming back, and now having the girls. That's mostly why I'm not applying for the [-130, because now that we have the girls, I need to stay here." Ironically, Lily's respon- sibility for her U.S.-citizen siblings makes her unable to risk becoming legal herself.

Jorge and Beth also undertook immigration processing as a result of a deportation order. In their case, Beth had surprised Jorge with tick- ets to see his favorite college football team: Syracuse. Nervous about driving over state lines, they decided to travel from Chicago to Syracuse, New York, on a Greyhound bus. One stop shy of their final destination, U.S. Customs and Border Protection agents boarded the bus and began asking passengers for proof of their citizenship status. Jorge told the agents that he was a Mexican citizen, and they requested to see his green card. He did not have one, and the agents took him into custody.

Jorge is fluent in English, and he passed his first night in detention translating for U.S. Customs and Border Protection agents as they questioned Spanish-speaking detainees. The agents bought him a pizza as a thank you, and Jorge was hopeful that they would soon release him on bond. Instead, they transferred Jorge to a detention center in Texas, and three weeks later he was deported to Mexico. It took Beth six years to get him back.

Because Beth and Jorge were not married at the time, they did not have a strong legal stance from which to fight the deportation. And once Jorge was deported, the stigma of his deportation cast a pall over their case and made it much more difficult for him to return. Following Jorge's deportation, Beth moved to Mexico and filed the paperwork for a fiance visa. But when Jorge went to his immigration interview, he was barred from the United States for 10years, and their petition to have the bar waived was denied twice. Although they now had a daughter and were struggling to survive in Mexico, immigration agents determined that Beth's hardship did not outweigh Jorge's "disrespect" for U.S. im- migration laws. In total, immigration processing following Jorge's de- portation cost Beth and Jorge6years and some $30,000. More important,

The Family Petition 69

it devastated their family, both financially and emotionally, and they are still working to put the pieces of their lives back together.

Immigration processing was even more burdensome for Beth and Jorgebecause Jorge's deportation undermined his credibility as a po- tential U.S. immigrant. As I described in Chapter 2, good moral char- acter is a long-standing component of U.S. immigration and citizenship policies. In the current period, the ability of hopeful immigrants to demonstrate good moral character is eroded by criminalization and deportation. Indeed, for undocumented people, the approval of the family petition isjust the beginning of their journey with consular pro- cessing. The second step involves persuading immigration agents that they are not criminals, but "good" people who are deserving of a U.S. visa. I explore that process in depth next.

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bibltographical references and index. Idennhers: LCCN 20160048061 ISBN 9780190276010 (paperback) Subjects: LCSH: United Srates-vlamgrarion and immigration-vSocia] aspects. I

Immigrant farnilies-vl.Jnired Srares.-Bocial conditions. I Immigrant families-- Legal status, laws, erc.c-Unired Sraees.] Emigranon and tmmigrarion law-. Social aspecea-LJnired States. 1United Scaces-Ermgranon and irurnigrattcn-> Government policy. IBISAC: SOCIAL SCIENCE I Anthropology I General. 1SOCIAL SCIENCE I Anthropology I Cultural. ISOCIAL SCIENCE I Brhnrc Studies I Hrsparuc American Studies.

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Becoming Legal

Immigration Law and Mixed-Status Families

RUTH GOMBERG-MUNOZ

New York Oxford OXFORD UNIVERSITY PRESS