In 2012, President Obama released a policy guidance known as the Deferred Action for Childhood Arrivals (DACA) that will defer removal proceedings and grant employment authorization to thousands of undocumented immigrants. But while these young immigrants are given temporary relief, their parents who brought them to the United States are left without options to legalize their status. When young undocumented immigrants apply for relief, they will still be faced with the possible separation from their family should their parent(s) be deported. If this happens, will there still be an opportunity for the parent-child to be reunited? What if the parent is already in the Philippines? What steps may be taken for the return?
Jocelyn and her 15 year old daughter Madeline entered the US in 2004. Jocelyn and Madeline came to the US on a tourist visa to visit Jocelyn’s parents who are lawful permanent residents. All of Jocelyn’s siblings are green card holders and she is the only member of the family who was left in the Philippines. She was over 21 years old when her parents’ petition became current and because of this, she was not able to immigrate with her family.
Considering that Jocelyn’s entire family resided in the US, Jocelyn decided to remain in the US and fell out of status. Jocelyn’s father petitioned for her as an unmarried child of a lawful permanent resident with Madeline as a derivative beneficiary of the petition.
Jocelyn found a job as caregiver. She was wrongly advised to file for political asylum in order to get an employment authorization document. However, instead of an employment authorization document, Jocelyn was put in deportation proceedings because of his denied political asylum case. She was not aware that she had a hearing, and a deportation order was issued in her absence.
During an ICE raid at the care home facility where Jocelyn works, Jocelyn was picked up for not having proper legal documents. It was discovered by ICE that Jocelyn had a warrant of arrest because of her final deportation order. To avoid removal, Jocelyn’s daughter Madeline availed of the immigration benefits of DACA as a young immigrant. Jocelyn was sent back home to the Philippines, but her daughter Madeline was allowed to stay under DACA. Jocelyn and Madeline are now separated from each other. Madeline resides with her elderly grandparents who are struggling to take care of her. Madeline misses her mother very much and is worried about her because Jocelyn does not have any family left in the Philippines.
What steps can Jocelyn take to enable her to return to the United States and be reunited with her daughter Madeline?
Effect of Deportation/Removal
The separation of family members due to removal is unfortunately a very common occurrence. Family reunification for some people can be near to impossible depending on the severity of the immigration violations. Family members can be separated for up to 10 years based on the unlawful presence bars.
In Jocelyn’s case, she must remain outside the US for 10 years due to her removal order and being unlawfully present in the US for over one year.
Reuniting with the Parent
An individual must have an approved petition with a priority date that is current before a visa may be processed and issued. Fortunately, Jocelyn has an approved petition from her father and the priority date is now current. To overcome her issues of inadmissibility based on the removal order and her unlawful presence in the US, Jocelyn may file certain waiver applications to reenter the US.
Once the visa is processed based on the approved petition, Jocelyn will be able to apply for a 212 waiver to reenter the US during the 10 year period and a 601 waiver for the misrepresentation on the asylum application. These waivers require Jocelyn to prove that her qualifying relatives will suffer extreme hardship if she is not permitted to reenter the US. Similarly, she will need to show the same extreme hardship to waive to her misrepresentation on the asylum application. Qualifying relatives are US citizen or LPR spouses and parents.
Here, Jocelyn will need to show that her elderly parents will suffer extreme hardship if she is not able to reenter the US. Although Madeline is not a qualifying relative, Jocelyn can show that her parents are struggling financially to support Madeline, and that Jocelyn needs to return to the US to take care of Madeline. If Jocelyn can demonstrate the hardship to her parents, she will be able to reenter the US under her father’s petition before the 10 years have passed.
Mixed Legal Status Families
There is a significant number of Filipinos living in the United States with mixed legal status families. This means that at least one member of the family is in unlawful status. Most often, one or both parents are in unauthorized status and are subject to deportation. When the deportation order is enforced, the U.S. citizen children or children granted legal status are left behind by their parents on the belief that it will be for the best interest of the children to remain in the United States. When family separation happens this way, the children who are left in the United States are often faced with both the trauma of being separated from their parents due to their deportation, and the continued fear, stress and anxiety in their everyday lives due to their own immigration status.
The adjustment to a disrupted family unit for a child is not easy. Since separation is a possible effect when parents are discovered to be without legal status and eventually deported, children are hesitant to even take advantage of whatever temporary relief that DACA provides to them. The best scenario is for an immigration reform to grant relief not only to young undocumented immigrants but to their parents as well.
(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)
