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The Overlooked Pathways to Legal Status

Undocumented immigrants eligible to become legal residents often don’t know how to apply due to a lack of resources and information.  

A legal clinic for potential deferred action applicants on Manhattan's Lower East Side. (Richard Drew / AP)

For the past 18 months, President Obama’s executive actions on immigration reform have been bogged down in litigation. Texas and 25 other states argue that Obama overstepped his authority by effectively overruling or rewriting federal immigration laws to allow unauthorized immigrants to stay and work in the United States. But some unauthorized immigrants are eligible to become legal residents using existing laws and regulations. In many cases, they just don’t know how to apply due to a lack of resources and information.

It’s a common problem: Unauthorized immigrants are often unaware of laws that can grant legal status and, in any case, they find it difficult to navigate the complex process. Immigration lawyers have observed that immigrants do not fare well without legal assistance. A UCLA study found that individuals in removal proceedings who obtained legal representation were 15 times more likely to apply for relief from removal than those without lawyers, and five-and-a-half times more likely to be granted some sort of legal status that permitted them to stay in the United States.

Unlike criminal defendants, however, unauthorized immigrants don’t have a constitutional right to a government-funded lawyer. According to the UCLA study, only 37 percent of all immigrants, and 14 percent of detained immigrants, are represented by lawyers. Children also go unrepresented in immigration court.

As a result, many unauthorized immigrants do not take advantage of laws allowing them to become legal residents. Officials can grant legal status to children who are unauthorized if a state court finds that the child has been neglected, abused, or abandoned by a parent, and that it is not in the child’s best interest to return to his or her home country. Immigration officials also have the discretion to give an unauthorized immigrant permission to leave the United States briefly to apply for a visa and then to re-enter as a lawful permanent resident if a longer separation would cause the individual’s legally present spouse or parent “extreme hardship.” Similarly, immigration judges can grant legal status to long-term, law-abiding unauthorized immigrants whose deportation would cause “exceptional and extremely unusual hardship” to their legally present relatives. Victims of crimes can also qualify for a special visa if a law-enforcement officer attests that they are willing to help in the investigation.

Of course, not all unauthorized immigrants qualify for these pathways to legal status. But a significant number do: A 2014 survey of 67 legal organizations that assisted unauthorized immigrants applying for “deferred action”—a temporary reprieve from removal that does not come with legal status—found that 14.3 percent were also eligible for a more permanent form of immigration relief. It also found that over 3 percent of unauthorized immigrants seeking legal assistance were already citizens, or were eligible for citizenship through a U.S. citizen family member.

The federal government regularly helps people come into compliance with the law, so why not provide further assistance to unauthorized immigrants? Immigration officials could inform unauthorized immigrants of their legal options by notifying those who apply for temporary forms of relief, such as deferred action, that they may have a path to legal status. Similar initiatives have already been rolled out on a small scale in some areas.

Since 2003, the Department of Justice has administered a Legal Orientation Program that provides know-your-rights trainings to unrepresented litigants in detention. In fact, Congress appropriated $1 million to fund the Legal Orientation Program in 2002 and has continued to fund the program ever since—indicating that Congress recognizes the benefits that come from educating unauthorized immigrants about their legal rights. In 2014, judges on the United States Court of Appeals for the Second Circuit helped to spur the creation of New York’s Immigrant Justice Corps—a nonprofit group that represents immigrants in the city who are in removal proceedings. These programs have all helped unauthorized immigrants apply for legal status, and they have streamlined the removal process for those who do not have that option. Still, these initiatives have only been successful in helping discrete pockets of the population; they still fall short of addressing the more than 11 million undocumented immigrants in the United States.

So why hasn’t the executive branch rolled out more efforts to help unauthorized immigrants determine whether they have a pathway to legal status? At least one obstacle is the current enforcement culture: Many immigration officials view their job as a commitment to remove unauthorized immigrants, so they might not welcome new job requirements that ask them to educate and advise unauthorized immigrants about pathways to legal status. Of course, retraining immigration officials, ramping up funding for initiatives like the Legal Orientation Program, and hiring more staff to educate immigrants requires substantial resources up front, which requires substantial political will. And that may be the biggest obstacle of all.

The White House has the funding to remove roughly 400,000 unauthorized immigrants each year, leaving millions still in the United States indefinitely. But if some of that funding went toward rolling out initiatives that assist people in obtaining legal status under existing laws, there would be fewer unauthorized immigrants to remove. To be sure, helping immigrants avail themselves of all the opportunities they have under the law would not solve the nation’s unauthorized immigration problem. But it would be a start—and it would provide a more permanent solution for those who have a legal right to stay in the United States, but who just don’t know it.