Almost as soon as President Biden announced a sweeping executive action in June to put more than 500,000 people on a path to U.S. citizenship, immigrants who would not qualify under the plan began lobbying to be included.
The new policy, unveiled before Biden dropped out of the presidential race as he sought to shore up his progressive credentials, would shield undocumented spouses of U.S. citizens from deportation if they have lived in the country for the past decade, have no disqualifying criminal convictions and pass a vetting process to ensure they do not pose a threat to public safety or national security.
The program would allow these spouses, many of them with children here and deep roots in their communities, to stay in the United States and work legally. They would also be allowed to access immigration benefits available to spouses of U.S. citizens. Biden cast the change as a moral imperative to keep families together, as well as an economic benefit to bring more workers out of the shadows.
Formal regulations to implement Biden's policy could be published any day, with applications expected to open later this month.
But Biden’s proposal leaves out many people who immigration advocates say also deserve protection but don’t meet the proposed criteria. That includes spouses who followed current rules and voluntarily left the country to apply for reentry, and are now outside the U.S. A Biden administration official said last month that the issue was under review.
Other immigrants would be barred from participating in Biden's plan because of decades-old border crimes or because they failed a U.S. consular vetting process.
Christopher Sanchez, 24, shows a photograph of his father, Isaiah Sanchez Gonzalez, who was denied a visa in 2016.
(Myung J. Chun / Los Angeles Times)
Advocates for these families estimate that more than a million people married to U.S. citizens are denied a path to citizenship for a variety of reasons.
Adriana Gutierrez, 41, and her husband Jose, 43, are among those left out of Biden’s program, which relies on an authority known as “parole in place.”
Jose, who asked that his last name not be used, entered the United States illegally more than 20 years ago. He met Gutierrez almost immediately. They married and now live in the Sacramento area with their four children.
They lived a quiet, law-abiding life, but their lawyers advised them not to apply for a green card because it might draw unwanted attention to Jose's situation.
That's because shortly before the couple met, Jose had tried to cross the border illegally using a cousin's U.S. birth certificate. He was caught, deported, and slapped with a lifetime re-entry ban. A few days later, he crossed illegally into the United States again.
“We are together, but we live under this shadow,” Gutierrez said. “I think it is unfair that we have to pay such a high price for something he did more than 20 years ago.”
Others will not receive protection under Biden's plan because they tried to follow previous immigration rules.
Immigrants who enter the country legally and marry U.S. citizens can obtain legal residency and, later, U.S. citizenship. But as punishment for evading immigration law, those who enter illegally and marry must leave the country to adjust their immigration status and typically wait at least a decade before being allowed to return. In practice, many receive waivers that allow them to speed up the process and reunite with their families.
Celenia Gutierrez (no relation to Adriana) said her husband, Isaiah Sanchez Gonzalez, left their Los Angeles home and three children in 2016 to attend a visa interview in Ciudad Juarez, Mexico. He assumed he would be quickly readmitted and reunited with his family.
Instead, he was barred from returning because, after the interview, a consular official suspected he belonged to a criminal organisation, a claim he denies.
“I dedicated myself to doing the right thing. I never had any problems with the law or the police,” Sánchez González said. He believes the consular officer may have suspected that his tattoos — of the Virgin of Guadalupe, comedy-tragedy theater masks and the Aztec calendar — were gang-related.
“I like tattoos, but if I had known the problems they would cause, believe me, I wouldn’t have gotten them,” she said.
Following the denial, his wife, who was studying to be a nurse, was forced to put her studies on hold and get a job to support two households while battling depression.
Sánchez González, 46, now lives in Tijuana. His wife and children visit him one or two weekends a month.
Celenia Gutierrez, 41, believes her husband could have qualified for Biden's spousal protections if he had simply remained in the United States instead of trying to rectify his legal status.
Celenia Gutierrez shows a photo taken in June with her husband Isaiah Sanchez Gonzalez, second from left, and their sons Christopher Sanchez, 24, left; Brandon Sanchez, 13, and Anthony Sanchez, 19.
(Myung J. Chun / Los Angeles Times)
“We decided to get married so we could get his papers,” she said. “We didn’t want him to get deported. We tried to do everything we could to do it right, and it still happened.”
Just before Biden announced the program, his administration waged a legal battle against a U.S. citizen from Los Angeles who similarly separated from her husband after he went to El Salvador for a visa interview and was rejected, despite his assurances that he had no criminal record.
The government alleged — based on his tattoos, an interview and confidential information from law enforcement — that Luis Asencio Cordero was a gang member, which he denied. In June, the Supreme Court’s conservative majority ruled against the couple, finding that Asencio Cordero’s wife, Sandra Muñoz, had failed to show that her constitutional right to marriage extends to living with him in the United States.
Due to the uncertainty of reentry, many immigrants have chosen to remain in the United States and continue to risk deportation.
American Families United, founded in 2006 to advocate for U.S. citizens married to foreigners, is urging the Biden administration to offer a review of the most difficult cases, including those of immigrant spouses in the U.S. who know they would face barriers to reentry and those who have already left the country for a consular interview and were denied while abroad.
The group believes the vetting process and interviews conducted by consular officials can be too subjective and unaccountable. Such decisions are rarely reviewable by federal courts, although immigrants who are denied asylum while in the United States can appeal.
“We are asking for discretion,” said Ashley DeAzevedo, president of American Families United. The organization has a membership list of nearly 20,000 people, most of whom are families with complex cases. “It is very difficult to have 10 years of presence in the United States, be married to a U.S. citizen and not have some kind of complication in your immigration history.”
In an interview with The Times last month, Tom Perez, a senior adviser to the president, said the administration has considered what to do with immigrants who tried to legalize their immigration status and ended up separated. It is not known how many such families exist, he said.
“How can we deal with people who actually complied with the rules in place and who are in Guatemala or wherever they are?” he said. “It is an issue that is clearly on the table.”
Al Castillo, 55, a Los Angeles man who asked to be identified by his middle name, has been separated from his wife for two years after she left the country to apply for permanent residency under the rules.
She has not been denied reentry, but has found the bureaucratic process so complicated and stressful that she is unsure whether she will be allowed to return or qualify for protection under Biden’s program. Fearful of making the wrong move, she now finds herself in limbo, her husband said.
The rule, “unless it’s written in the right way, can’t help us,” Castillo said.
When Biden announced the program, he said he wanted to avoid separating families.
“Under the current process, undocumented spouses of U.S. citizens must return to their home country… to obtain long-term legal status,” the president said. “They must leave their families behind in the United States, with no guarantee that they will be allowed to return.”
Shortly after Biden announced the program, former President Trump’s reelection campaign harshly criticized it. In a statement, the campaign’s national press secretary, Karoline Leavitt, called it “mass amnesty” and claimed it would lead to an increase in crime, invite more illegal immigration and guarantee more votes for the Democratic Party.
Meanwhile, Vice President Kamala Harris, who is now running against Trump, issued a statement calling the move “an important step forward” and saying those who will benefit deserve to remain with their families.
On a call with DeAzevedo and other advocates last month, Rep. Lou Correa (D-Santa Ana) said protecting immigrants who are married to U.S. citizens is as much an economic issue as it is a matter of being on the right side of history.
Rep. Lou Correa and his wife Esther, far right, along with U.S. Senate candidate Loretta Sanchez, greet supporters in Santa Ana.
(Gary Coronado/Los Angeles Times)
“Do you want to keep the American economy strong?” he said. “We need more workers. And what better worker could come into society than those who have been here 10, 20, 30 years working hard, who have children, grandchildren, mortgages to pay, have respected the law and have paid their taxes?”
