No parent left behind: seeking equality for parents of U.S. citizens

• Author: Jesus Torres-Rojas
• Position: J.D. Candidate, 2022, University of Arkansas School of Law
• Pages: 823-845

NO PARENT LEFT BEHIND: SEEKING EQUALITY

FOR PARENTS OF U.S. CITIZENS

JESUS TORRES-ROJAS*

ABSTRACT

When applying for an immigration benefit they are otherwise eligible for,

several parents of U.S. citizens are confronted with the reality of the three

and ten-year bar to admissibility. This bar to admissibility, enacted by Illegal

Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, pre-

vents an individual from obtaining legal status if they were or are unlawfully

present in the United States. This is the reality for many individuals who

entered the United States irregularly and have U.S. citizen children who are

now of age to petition for an immigration benefit for their parents. While a

waiver to such bar is available for spouses and offspring of U.S. citizens, the

waiver fails to afford the same opportunity to said parents of U.S. citizens.

This Note explains the source of the bar, formulates an equal protection claim

against the waiver by establishing that the familial relationships at issue are

similarly situated, finds the appropriate standard of review to be strict scru-

tiny, explains how the waiver fails strict scrutiny, and resolves that the waiver

must be extended to the parents of U.S. citizens.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824

II. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825

A. Unlawful Presence ............................. 827

B. Waiver for Unlawful Presence ..................... 829

C. Provisional Waiver for Unlawful Presence ............ 830

* Jesus Torres-Rojas, J.D. Candidate, 2022, University of Arkansas School of Law. The author

thanks his family for their support throughout this process, Professor Zilberman for her invaluable feed-

back, and the editors of the Georgetown Immigration Law Journal for their tremendous help. © 2022,

Jesus Torres-Rojas.

823

III. EQUAL PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 831

A. Similarly Situated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 832

B. Scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 834

1. Government Interest . . . . . . . . . . . . . . . . . . . . . . . . . 838

2. Narrowly Tailored . . . . . . . . . . . . . . . . . . . . . . . . . . 839

IV. CONCLUSION ...................................... 845

Casi 14 a~nos, Sin ir a mi tierra, A donde nací, Ya todo ha cambiado, Le

ruego a mi Dios, No se olviden de mí, Se murió mi madre, Y dice mi

padre que ya está muy Viejo, Y no quiere venir

Y yo sin poder ir

Y yo sin poder ir

1

I. INTRODUCTION

“You are barred.” Those are the words that parents of U.S. citizens often

hear when seeking permanent residency in the United States. The devastating

news hits them like a bucket of cold water. After twenty-one years of waiting,

they finally hoped to emerge from the shadows now that their children

reached adulthood and are eligible to petition for permanent residency on

their behalf. During the twenty-one-year waiting period, the parents of those

U.S citizens live in fear, miss significant family occasions, and lose loved

ones. Despite the difficulties, they remain strong and hopeful. Inevitably,

they are confronted with the disheartening news that sentences them to an

uncertain future. These cases are not few.

While births to undocumented immigrants have been declining since the

Great Recession, there were an estimated 2.1 million births to undocumented

immigrants from 1980–1999.

2

This means that, currently, at least 2.1 million

U.S. citizens are of age to petition for an immigration benefit for one or both

of their parents. Considering the total births from 1980–2016, five million

U.S. citizens are or will be of age to petition for an immigration benefit for

one or both of their parents by 2026 at the latest.

3

It is in this context that this

Note analyzes the source of this bar, formulates an equal protection claim

against the applicable waiver that leaves out parents of U.S. citizens, finds

strict scrutiny to be the appropriate standard of review, and, in the final analy-

sis, finds that the waiver does not pass strict scrutiny.

1. CALIBRE 50, El Corrido de Juanito, in GUERRA DE PODER (Andaluz Records 2017) (translating to

“It has been almost 14 years since I was in my homeland, where I was born. Now everything’s different

and I pray to God they never forget me. My mother died and my father says that he is very old now and he

doesn’t want to come, and I can’t go there, and I can’t go there.”).

2. Number and Share of U.S. Births to Unauthorized Immigrants, 1980-2016, PEW RSCH. CTR. (on

file with author).

3. Id.

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