Benny arrived in the United States with a tourist visa in 1995 with his wife and 2 minor children. Two months after his arrival, Benny applied for political asylum and obtained an employment authorization card. In 2000, Benny and his wife divorced. In the meantime, Benny was not aware of the status of his political asylum case. Unknown to him, his case application was denied and he was ordered deported by an immigration judge. He finally received this deportation order but ignored it.
Two years after his divorce, Benny married a U.S. citizen named Cathy. They have one child together. Cathy petitioned Benny for a green card. During his interview, Immigration and Customs Enforcement (ICE) agents arrived and arrested Benny. He was detained without bail because of his outstanding deportation order. Benny is the only breadwinner in the family. Cathy begged the ICE agent not to deport her husband and to consider the fact that Benny has a U. S. citizen spouse and minor child. He was deported nonetheless.
The same fate happened to Helen who has been undocumented for many years. She had a relationship with a U.S. citizen and had a child. The father of the child abandoned Helen and reported him to the U.S. Immigration and Customs Enforcement. Helen’s child was only 8 months old when she was arrested. Helen begged, as her US citizen child would be without a mother if she were deported. Just like Benny, Helen was deported. Her child was forced to leave with her. Despite the fact that the child is a U.S. citizen, the immigration agent reasoned that the mother had the choice to leaving the child or taking the child with her. Naturally, the mother opted to take the child with her.
Mandated Reporting of Parents Being Deported
The U.S. Department of Homeland Security is mandated yearly by Congress to report the number of parents of U.S. citizens being deported. In a February 2009 report, more than 100,000 parents of US-born children were deported from the U.S. between 1998 and 2007. In a March 26, 2012 report, Department of Homeland Security records show that it deported in six months 46,486 individuals who have at least one U.S. citizen child. Family unity no longer seems to be a major consideration of an individual’s deportability.
Petitions by U.S. Citizen Children
Children born in the United States become citizens at birth. US immigration law only allows a U.S. citizen child to petition their parents after they turn 21 years of age. The mere fact that an undocumented immigrant has a U.S. citizen child does not in itself confer a benefit to the parent.
Extreme Hardship to Children
When a parent is put in deportation proceedings, the U.S. children may become qualifying relatives to support a relief from deportation. This happens when the parent in proceedings is requesting the immigration judge for relief from being deported because of continuous physical presence of ten years or more in the United States. In this particular case, the children need not be 21 years old to support the parent’s defense in court.
In these cases, it is not enough that one has a U.S. citizen child. It must also be proven in court that the child will suffer extreme hardship if the parent is deported. Proving extreme hardship in court remains a challenge for most deportees because separation of family members in itself is not sufficient. There must be other factors that must be considered.
In the case of Helen above, her deportation proceedings happened before she had a U.S. citizen child and so she was not able to have any relief available.
No Anchor Babies
Many conservatives in Congress oppose the giving of legal status to young undocumented children under the DREAM Act due to the fact that these children will eventually petition their undocumented parents as soon as they get status. To these conservative legislators, this is like giving amnesty to undocumented immigrant parents.
In certain cases also, presence of U.S. children alone is not enough to waive a fraud or misrepresentation case. Only presence of U.S. citizen spouses or parents will waive a fraud perpetrated by a deportee or an applicant for visa.
Merely having a US citizen child is no defense for undocumented parents from being deported. With recent Homeland Security figures showing that undocumented immigrants are being deported despite having US citizen children, one would question whether promoting family unity is still the central policy behind US immigration. Or, has the theme of promoting family unity been sacrificed in exchange for restrictive immigration policies?
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
