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Strange No More: The Bishops Finally Endorse Marriage In Immigration Law

by Paul Donnelly

"I would call your attention to the curious incident of the dog in the night-time." "The dog did nothing in the night-time." "That was the curious incident."

This famous exchange between Sherlock Holmes and Inspector Gregory in "Silver Blaze" may seem an odd insight into the mess that is American immigration policy, much less a moral indictment of the U.S. Conference of Catholic Bishops, but bear with me: because at long last, the Bishops have done the right thing, or at least said it. On January 22nd, the United States Conference of Catholic Bishops and Conferencia del Episcopado Mexicano issued their pastoral letter "Strangers No Longer: Together on the Journey of Hope." Much of the letter is unremarkable, reiterating the Bishops' view that "While recognizing the right of the sovereign state to control its borders [ the Roman Catholic Church teaches] that this right is not absolute, stating that the needs of immigrants must be measured against the needs of the receiving countries… [that] the sovereignty of the State, although it must be respected, cannot be exaggerated…"

As a document negotiated among clerics and largely read by other clerics, which at best will be turned away by policymakers with faint praise, the Bishops' letter got little press coverage. The principal political influence of the Bishops, of course, is moral in character: when faithful Catholics hear Bishops (much less the Pope) formally state that something is morally wrong, e.g., abortion, that understandably affects their concept of civic duty. But the pedophilia scandal has all but obliterated the Bishops moral influence in the United States: Cardinal Law in Boston, for example, who had been such a political player at one time that the senior President Bush appointed him to be the first chair of the U.S. Commission on Immigration Law, was forced to resign in disgrace as prelate in Boston. The pedophilia scandal severely threatens the Church in Mexico and, indeed, worldwide. Ireland, formerly the most Catholic country in Europe, is now considered "post-Catholic", primarily because the Roman Catholic Church in Ireland badly mishandled crimes by priests. So the Bishops' quaint view that the authority of the State can be "exaggerated" in immigration policy is the sort of screaming irony that politicians beware to associate with.

Yet the Bishops' letter points to a way not only to move the American immigration debate away from cant and jargon like "245(i)", toward simple, honorable notions like "marriage" and "parenting", but also to a small, sensible means of rebuilding their nearly dissolved moral authority. Granted, it's the 65th paragraph of a 13,000 word pastoral letter, but the key passage reads:

"[T]he spouse or child of a Mexican-born legal permanent resident can wait approximately eight years to obtain a visa to join loved ones in the United States. Spouses and parents thus face a difficult decision: either honor their moral commitment to family and migrate to the United States without proper documentation, or wait in the system and face indefinite separation from loved ones."

Astoundingly, that is the FIRST time these princes and barons of the Catholic Church have said even that much explicitly about the importance of marriage in U.S. immigration law. "The curious incident of the dog in the night…"; the dog that didn't bark.

In 1990, the original House version of IMMACT90 proposed to treat the spouses and minor children of legal permanent residents as an unlimited category for immigration visas, the same as the spouses, minor children (and parents) of U.S. citizens. At the time, the 1986 amnesty process was clanking along, with what would eventually result in more than 3.1 million getting green cards. Few of the self-proclaimed 'pro-immigration groups' paid much attention to the impact which the amnesty would have on family-based immigration. Indeed, the 1990 Act was actually defeated on the House floor on the last day of the session over a demonstration project for a fraud-resistant drivers' license (a measure considerably less extensive than what is now standard practice), and the last permanent increase in legal immigration, 40% more green cards annually for more than a dozen years now, was only passed into law after a literally eleventh hour feat of unsung legislative legerdemain by then House subcommittee Chair Bruce Morrison. (Full disclosure: I was his press secretary at the time, and that this was unsung, was my failure. Not for lack of trying, though.)

During the key negotiations with the Republican-controlled Senate, the Democratic House tried to retain as many provisions to increase immigration as it could, e.g., the deregulation of employment-based visas. Ably led by Alan Simpson (who as the incumbent Senate chair for the foreseeable future, kept reminding Bruce Morrison, who was leaving the House, that Senators didn't really need a bill that badly), the Senate kept knocking those provisions out. The fact is, we needed groups like the Bishops to insist that morally, marriage is marriage: that it would be wrong to treat the spouses and children of legal permanent residents as negotiable. The groups didn't say that. It is perhaps understandable that the American Immigration Lawyers Association made more of an effort to preserve the failed labor certification regulation system than to make the nuclear families of green card holders an unlimited category, but it is hard to understand why faith-based groups said nothing.

Then it got worse. Perhaps the best that could be said of the faith-based groups, is that they didn't anticipate – then – that it would get worse.

To be perhaps unreasonably charitable there was an argument made about the 2A backlog, the spouses and children of legal permanent residents, that it would not be significantly increased by the 1986 amnesty. Identical to the arguments made today for the "Grand Bargain" by such stalwarts as Demetrios Papademetriou co-director and co-founder of the Migration Policy Institute, the idea was that those who were illegally present in the United States and qualified for amnesty would use their green cards to 'rejuvenate the circulation', the phrase Papademetriou coined for the guest worker/amnesty deal with Mexico that has now fallen through, merely working in the U.S. and returning to their families in Mexico. This did not happen. Mexican workers acted, well, like people – in fact, like the Catholics most are – bringing their spouses and children to the United States to live together and build a better life.

That is why the Bishops feel so strongly about immigration, but it is curious that they don't think more clearly about the moral building blocks of their responsibilities.

By 1995, the State Department formally estimated the 2A backlog to be 1.1 million people, waiting a minimum of 3 years for their green cards. The bipartisan U.S. Commission on Immigration Reform (now led by the late Barbara Jordan, replacing Cardinal Law) pointed to this as the primary reason for reforming family-based immigration. The Commissioners reasoned (on an 8-1 vote, with the only dissent being the then-Executive Director of the American Immigration Lawyers Association, Warren Leiden) that it was immoral and unAmerican, but mostly just plain impractical, to expect that husbands and wives, parents and small children, would live for long in different countries. To be fair, the Commissioners compromised among themselves in recommending neither an immediate increase, nor a decrease in legal immigration, but a fundamental reordering of family-based priorities: the nuclear family backlog was to be eliminated within five years by 150,000 MORE visas a year for the spouses and kids of green card holders. Others – including Leiden – paid lip service to the goals and objected to the Commission's compromise, without actually offering an effective alternative.

Personally, I went right up to the edge of professional ethics (as the Communications Director of the Commission), in urging faith-based groups to take yes for an answer. I could not in good conscience urge groups to accept the Commission's moral priority for nuclear families, and yet reject the trade-off which they proposed to free up the additional 150,000 visas a year by using the 60,000 annual visas for siblings of citizens, 35,000 for adult children, and 55,000 for the visa lottery. But I did ask – over and over and over again – what moral priority any of those categories had over wives and kids: the trade off which so many groups condemned when the Commission proposed it, has been part of U.S. law for decades. Every sibling admitted is somebody's wife or child, who does not get admitted. I love my five brothers and four sisters, but I LIVE with my wife and son: and there isn't a culture on earth which does not recognize that the obligation between husbands and wives, parents and small children, is vastly more morally important in every way than any other filial responsibility. Period.

And yet – no faith-based group stood up for immigrant marriages. Not one – not the Catholic Bishops, nor the Family Research Council, the Christian Coalition: as in 1990, no family group spoke up for the moral priority of marriage in immigration law at a key moment of a legislative battle. Indeed, the Christian Coalition played a key role in defeating the House version of the Commission's proposal in the spring of 1996. Granted, there was a political calculation involved, and of course professional lobbyists (even those for Bishops and faith-based organizations) make political calculations. The House bill was particularly harsh on immigrants, and – again! – the American Immigration Lawyers Association argued that the backlog for spouses and minor children of green card holders would simply go away on its own, that the "amnesty echo" would fade over time.

Both sides of this political calculation can be measured. The House bill was indeed harsh – and got harsher, when the priority for the nuclear family was stripped away. A key Republican staffer told me at the time that he had expected several of the worst provisions to be negotiated away, but: "Once the legal immigration provisions were eliminated, there was no need to compromise. And nobody asked us to." Indeed, when former Senator Spencer Abraham insisted on the Senate provision, in the 96' IIRIRA, that those illegally present for more than 6 months be banned from re-entry even with a legal visa for 3 years, and for more than a year, a 10 year ban: House chair Lamar Smith had to cave. He had nothing to bargain with. So much for the political calculation that abandoning the moral importance of marriage would make the legislation less harsh.

And what of AILA's calculation that the 'amnesty echo' would fade and thus, eliminate the outlawing and exiling of immigrant spouses and kids who choose to obey their marriage vows and family values rather than immigration law?

In 1997, the State Department again formally estimated the 2A backlog at 1.05 million persons, with the minimum wait now increased to 5 years. The slight decline they measured, if it was real and had continued, would not have eliminated the backlog by now, but it gave some measure of credibility to those who had insisted that no reform of the priorities for legal immigration was necessary.

But in 1999, the State Department once more began a formal count. And now, something critical became clear: the structure of the backlog was changing.

In 1995, the first 900,000 people in line were those who had been petitioned for, by those who had gotten the 1986 amnesty (generally filing their petitions in 1989, 1990, and 1991). Only the last 300,000 people in line had not broken U.S. law, so to speak, and thus it was argued, notably by Senator Mike DeWine (R-OH) on the Senate floor, that it would be wrong to grant a second favor to those who had already benefited from the first amnesty.

Again, the simple moral question that, perhaps, the Bishops might have asked Senator DeWine, was not raised: how long would the Senator live in a different country than his wife and children? Without that moral clarification, DeWine's argument was persuasive.

In 1999, the initial State Department count revealed that the 2A petitions at consular posts abroad had doubled since 1995 – to 600,000, from 300,000. One reasonable inference is that these are non-amnesty petitions – that is, those who were never illegally present in the U.S. who had obtained their green cards and then married, and properly asked for immigration visas for their spouses as well as the kids that would naturally follow in the first 5 years of marriage, while waiting for the Congress to honor these marriages.

That shift in the make-up of the nuclear family backlog would have been big news, since it would have eliminated the DeWine argument (also echoed by Stuart Anderson, then top immigration aide to Senator Abraham, and for a time the INS Executive Associate Commissioner For Policy And Planning) that these families are not actually separated, since most are here – illegally, and what does that matter?

But State did not complete their count in 1999. When the Office of Visa Control took the 600,000 consular petitions count to the INS, to add the numbers waiting within the U.S. for 2A visas, it became clear that the INS numbers – which had made up 2/3 of the previous counts – were not reliable. The reason is built into the system: when a legal permanent resident files an immigration petition for a spouse and (perhaps) the single child they have at the time, that is counted as two people on the backlog. Under the pierceable cap enacted in 1990 to maximize the visas available to the nuclear families (once we lost the moral principle of treating immigrant marriages equally, for lack of support), visas issued in other categories subject to limit are counted against the number available for spouses and kids. When that number reaches its floor, the overall cap is pierced. While the pierceable cap has many virtues, moral simplicity isn't one of them.

Another is that it does not allow for the growth of families over the passage of time. What the State Department learned in checking the INS count in 1999, is that petitions filed in the early 1990s for one spouse and one child, which were counted as two waiting in 1995 and in 1997, had become one spouse and two, three, even four children by the time the visas were issued in 1998 or 1999. Thus, the backlog was NOT declining, because even though four and five visas were being issued to families who had been counted as two people waiting, those behind in the queue were still waiting. And the line was still growing. Under the prior counts, roughly 150,000 a year had been counted as coming off a 1 million person queue, while 90,000 new petitions were being added. Thus, the overall 2A backlog was thought to be declining roughly 60,000 a year, e.g., from 1.1 million in 1995 to 1.05 in 1997, even as the makeup of the backlog was changing, with those stranded abroad doubling from 300,000 in 1995 to 600,000 in 1999.

But State's aborted count in 1999 revealed that the previous estimates of the backlog had understated it substantially, and that so far from declining, it may well be increasing. The increased time spent waiting for a green card – the Bishops cite as much as 8 years, which is optimistic – indicates that more children are added to many pending families. Some will be eventually be issued visas allocated to the 2A category under the pierceable cap, but no one knows exactly how many. Others will be citizens, born to mothers present illegally – it is an enduring mystery of immigration lobbying why faith-based groups don't communicate more forcefully, indeed communicate at all, how many spouses of legal permanent residents are also the mothers of U.S. citizens, and yet remain illegal aliens.

An instance of just how badly faith-based groups have failed on this issue, is the following quote to me when I raised this issue with a political conservative who shall remain nameless, who argues to Congress and state legislatures on the political significance of the sanctity of marriage: "One might wonder why people devoted to the sacrament of marriage move away from their spouses and children to live in another country. Not my personal view, but reframing immigration as a marriage issue seems problematic to me."

ILW.COM readers will recognize instantly that this turns the facts on their ear: the State Department's 1999 count that the numbers of spouses and children with consular petitions had doubled in just four years proves that the 2A backlog had already become a case in which individuals get their green cards first, and then get married: only to find that the Congress requires (if it does not expect) them to sleep in separate nations for the better part of a decade.

No one has formally estimated how large the spouses and minor children backlog has gotten to be, since the Clinton administration killed the State Department counts four years ago. Surely, publishing a solid number would build a fire under the faith-based wing of the pro-immigration coalitions – and it should. Just as surely, the various 'indefinitely temporary' categories, such as the V visa, do not provide anything like enough visas to resolve the problem, even for those few thousand who have managed to get one.

But no one has answered the question. Few even ask it.

How many? One way to get at the scale of the problem is to note that even before State realized that its original estimate of 1.1 million on the nuclear family backlog was too low, was that it counted the decline to 1.05 million over two years: 95,000, rounded off to 50,000 a year. That is in the order of magnitude by which 150,000 a year are taken off the backlog, while 90,000 new petitions are added. By that, now proven to be overoptimistic dynamic, even as 1995's 1.1 million backlog is drawn down by what would have been 60,000 visas a year, 10,000 uncounted petitioners (children added during the waiting period) were added then the visas were issued, slowing the lawful union of the lawfully married (in the most optimistic calculation) by 16% -- rather a large number to be uncounted.

But that doesn't factor in that the 1.1 million figure was already too low by at least that many, that it would have been more accurate to estimate 1.4 million to 1.6 million waiting. The original 1995 estimate of 900,000 2A petitions pending at the time which made up the 'amnesty echo' did not count the high fertility among this population. A reasonable count would have to factor in those children born to these families outside the U.S., who took 2A visas when they finally got to the head of the line, and not the citizen children born here: in many such families, the father has a green card, the two youngest are citizens, but the mother and oldest child are illegal.

And such a more accurate count would have to calculate the presumably larger percentage of children born outside the U.S. to families with petitions filed at consular offices, since these families cannot move easily to the U.S. Demographics and other factors would weight the arithmetic, but it seems reasonable to conclude that since the number of these petitioned FILED between 1995 and 1999 doubled, the four years since surely did not see a substantial decline, but rather a commensurate increase – perhaps doubling again, which would make these petitions (still uncounted) to be greater IN ITSELF in 2003 than the original, egregious nuclear family backlog count of 1.1 million in 1995. And that does not count the new family members, children born abroad to these legal permanent residents of the United States, waiting impatiently for the Congress to recognize that immigrants, too, make marriage vows and value their families.

Which brings us back to the Bishops. Almost unique among the organized religions, Roman Catholicism has a strict heirarchy that famously (or infamously) does not cede much to secular authority. That is why the Bishops of the United States and Mexico so blithely asserted that the United States not "exaggerate" its sovereignty.

But the Bishops have consistently failed their moral mission regarding immigration policy for more than a decade now. No one would look to the Roman Catholic church for moral instruction of any depth on algebra or geology, because those issues – like economics and most immigration law – are properly understood to have a character distinct from questions that are easily reduced to right and wrong, virtue and sin. Likewise, for the Bishops to call, as they did in Strangers No Longer, for only Mexico's per-country ceiling to be lifted for family-based immigration, misses the opportunity for effective moral leadership as surely as they missed chances in 1990 and 1995.

Marriage is marriage. It is unclear why the Catholic bishops of Mexico and the United States would make a moral distinction between the marriages of Mexican-Americans, and those of green card holders who marry someone born in China or India. But perhaps paragraph 65 of this 13,000 word hints that the faith-based wing of the pro-immigration coalition will return to its own expertise, and speak to Congress not about the bogus economics of guest workers or the legal bafflegab of 245(i), but about the need for values-based immigration policy.

Ephesians 21:31 is blunt: "For this reason a man shall leave his mother and father and be joined to his wife, and the two shall become one." It is simply immoral and unAmerican, but perhaps most of all impractical, to expect that husbands and wives and small children will live for long in different countries.

Thank God the Bishops have finally figured that out. Let's hope that they have the courage of their convictions, perhaps in a lead paragraph next time.
The moral watchdog needs to start barking.

About The Author

Paul Donnelly writes about immigration and citizenship.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.