Pablo obtained his green card through his spouse Luisa. He was petitioned initially as a fiancé and later on as the spouse of a US citizen. The marriage, however, was short-lived. After a few months of marriage, Pablo discovered that Luisa was still going out with her former boyfriend. Luisa voluntarily left the conjugal home. Pablo was heartbroken. He has no other relatives in the US so he kept himself busy at work for the last two years. Last week, his employer asked for a copy of his current green card. Pablo, however, was not aware that his green card was only good for two years and that it had expired a few months back.
After realizing that his legal status had expired, he consulted with his former attorney for the filing of an extension of his green card. He was told that upon expiration of his status, he had been accruing unlawful presence in the US. This means that he is now an undocumented alien. After examining his case, the lawyer also discovered that Pablo has a prior deportation order. His notice for hearing and the deportation order was sent to his “old” address. He now runs the risk of being removed from the United States if the Immigration and Customs Enforcement (ICE) catches up with his whereabouts. Pablo was deprived of his right to a hearing and wants to have his case reopened so he can raise possible defenses in court.
A Motion to Reopen his case must be filed with the immigration court in order that Pablo may have the chance to be heard in his case. If this Motion is granted, he will have his day in court; and, if he prevails, he will have his green card.
Pablo did the right thing in seeking court relief instead of just accepting an immigration court order without a fight. Unfortunately, there are several non-US citizens who summarily decide to just leave the US and voluntarily depart without any immigration court order.
More Deportees in the Last Fiscal Year
ICE reported that their agency deported 392,662 individuals who were in unlawful status. This number of deportees is relatively high indicating the ICE policy of enhanced enforcement of immigration law.
Filipino immigrants who remain undocumented are not exempt from this forced deportation. For those who have cases like Pablo, sometimes a sudden arrest and subsequent removal from the US becomes a familiar event creating a culture of fear in the immigrant community. However, not all undocumented aliens are being forced out of the country. The Immigration and Customs Enforcement usually target criminal aliens and “fugitives”. An individual fails to depart the United States upon a final order of removal, deportation or exclusion from a US immigration judge or who fails to report to ICE after receiving a notice to do so is considered a “fugitive”.
Options Taken
Each individual deportee’s case is different. There are those who really do not wish to return to their homeland. While there are also those who submit to court orders and voluntarily depart. There are also those who just skip the whole court process and just leave the US discreetly.
After spending more than 25 years of being an undocumented alien in the US, a certain Glenda was able to save enough money to go back to her province and spend her retirement years comfortably with her family. To her leaving the US voluntarily would not be a problem. However, if Glenda had not been able to accumulate any savings, and if, as is common in many cases, her earnings all these years were just enough to send as support for her family and her siblings (mostly unemployed) in the Philippines, then voluntarily leaving the US may not be an option. She would have nothing to return to and no means to support herself and her family. In such a case, Glenda’s option of being a “fugitive” in the US would probably be a risk she would take.
Many individuals have available reliefs from deportation. In Pablo’s case above, he can defend himself by raising the relief of waiver based on a good faith marriage. There are also many who can raise the defense of “Cancellation of Removal” or “Adjustment of Status”. If Pablo prevails in his case, he will not be deported but will instead receive his green card.
Clogged Courtrooms
At present, immigration courts are facing the worst backlog of pending deportation and asylum cases. There are not enough judges to handle the hundreds of thousands of undocumented individuals who are facing deportation. In one news article, it was reported that immigration judges are on the verge of a nervous breakdown. They mentioned an immigration judge from Minnesota who quit his job because of the pressure of having to handle thousands of deportation cases. While the Department of Justice is hiring more immigration judges, it has not been able to catch up with the backlog of cases. It is expected that the situation will only get worse because of the increase in deportees who are opting to have a hearing before a judge.
Generally, a deportee will have to wait at least two years before the immigration judge comes out with a decision. The delay may work in favor of the deportee but it may also cause more stress based on the uncertainty of their immigration fate. While there are judges who suffer illness as a result of work pressure, there are also deportees who also get seriously ill pending hearing of their cases. I have had experience requesting for dismissal of cases because the respondents in the case have either suffered a fatal heart attack or died of sickness pending the hearing. It is not surprising then that the undocumented either decide to be a fugitive or just simply voluntarily depart.
There are mounting challenges that immigrants face in light of a fear-driven policy of immigration. What each deportee needs to understand is the legal consequences of every decision they make. It is understandable that the “family” is the main reason for working abroad but it is also the “family” who will welcome you back if hope of living abroad becomes really dim.
(Tancinco may be reached at law@tancinco.com or at 02 887 7177 or 02 721 1963)
