Embracing Mercy: Rehabilitation as a Means to Fairly and Efficiently Address Immigration Violations

Efforts by the U.S. Congress and the Obama Administration to provide millions of undocumented immigrants a path to legal status will fail unless deserving immigrants are allowed to overcome prior immigration or minor criminal violations. Indeed, a pathway to legal status is a hollow gesture if the path is either too narrow or too steep. As one means of evaluating which immigrants should benefit from comprehensive immigration reform, rehabilitation allows immigrants to demonstrate that they deserve a second chance and provides policymakers with a buffer against critics of immigration reform who allege it is nothing more than an amnesty for persons who violated immigration and criminal laws. This article explores the current limited use of rehabilitation in the immigration context, examines its historic use in the criminal justice system, contrasts the U.S. approach with that employed by Canada, and outlines practical measures which could be taken to ensure that rehabilitation is an effective tool to decide who deserves to walk the path to legal status. A central premise of this article is that, by significant margins, most Americans recognize that the value of welcoming immigrants with somewhat checkered immigration histories and perhaps even low-level criminal records outweighs the moral, social and economic costs of banishment. Current U.S. immigration laws are severe, unyielding and lead to the separation of families and the loss of productive workers for U.S. employers. Families, employers and educational institutions operate in a shadowland in which various members are a blend of U.S. citizens, Lawful Permanent Residents and undocumented immigrants.' Comprehensive immigration reform offers the hope that millions of immigrants who have lived and worked in the U.S. will be able to gain legal status. A touchstone of comprehensive immigration reform is that U.S. immigration laws should focus on justice and fairness and, in particular, persons who entered the U.S. illegally or who overstayed visas should not be treated as criminals but, instead, offered a pathway to legal status and eventual citizenship. As a legal, moral and ethical construct, comprehensive immigration reform makes sense: if enacted, families will no longer live in fear of the deportation of one or more of its members, employers will be able to hire needed workers without fear of violating federal and state laws, and American society can become more cohesive and less rent by legal status and ethnic divisions.

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