Many are unaware that in 1996, Congress passed an immigration bill that would separate children from parents and husbands and wives from each other. The Family Separation Penalty in the immigration law states that families must be separated three years if the family member remains without legal status for 6 months, or be separated for ten years if the time out of status is one year or more. As a result, children are now being raised by one parent or by friends and relatives, and the family unit is separated. U.S. citizen and permanent resident spouses are kept apart from their husband or wife. Children suffer without the love, affection and assistance of their parent. In the case of a relative who triggers the ten year Separation Penalty by leaving the United States, and then returns without authorization, the Family Separation Penalty increases to a lifetime bar.
The point of the Family Separation Penalty seems to have been to curb illegal immigration, but the result is that U.S. citizen children and U.S. citizen husbands and wives are irrevocably harmed. Even the limited waivers for extreme hardship fail to keep families together. The Family Separation Penalty was passed at a time when another section of the law was in effect - the 245(i) adjustment statute - which allowed those who were in the United States without legal status, even for more than one year, to obtain legal status through a relative's petition with the payment of a $1,000 fine. As a result, the Family Separation Penalty did not have a great impact on a large number of people at the time. Unfortunately, however, the provisions of the 245(i) law expired in 2001, and families could no longer pay the monetary fine. Instead, they would now pay with their suffering. And those who suffer are not only the relative whose unlawful presence invoked the penalty, but those legally resident and American citizen children and spouses who are left behind when the loved one departs to fulfill the Family Separation Penalty.
We are a nation of laws, but we are also a nation with humanity. The Family Separation Penalty, found at INA Section 212(a)(9), is a draconian law and should be replaced with a civil money penalty like the 245(i) law, but without the process for adjustment of status in the United States. A relative who has remained in the United States unlawfully should be required to pay a penalty and should apply for an immigrant visa outside the United States via consular processing in order to enter legally. But the U.S. citizen and permanent resident relatives of the immigrant should not be made to pay with their own suffering. The time to change the law and abolish the Family Separation Penalty is now. Let's urge our lawmakers to end the 212(a)(9) Family Separation Penalty, and put in its place a monetary fine for consular processing. Let's make 2014 the year of family reunification, not separation.