Benny arrived in the United States with a tourist visa in 1995 together with his wife and two 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 application was denied and he was ordered deported by an immigration judge. He received this deportation order but ignored it.
Two years after his divorce, Benny married a US citizen named Cathy. They have one child. Cathy filed a petition for Benny to get a green card or permanent residency status. But during his interview, Immigration and Customs Enforcement 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 US citizen spouse and minor child. He was deported nonetheless.
The same fate happened to Helen who was undocumented for many years. She had a relationship with a US citizen and had a child. The father of the child abandoned Helen and reported her to ICE agents.
Helen’s child was only eight months old when she was arrested. Helen begged the immigration bureau to let her stay, as her child would be without a mother if she were deported. Just like Benny, Helen was deported.
Despite the fact that the child is a US citizen, the immigration agent reasoned that the mother had the choice of leaving the child or taking the child with her. Naturally, the mother opted to take the child with her.
According to a US Department of Homeland Security report in February 2009, more than 100,000 parents of US-born children were deported between 1998 and 2007. Its March 2012 report listed 46,486 individuals who had at least one child were deported in a span of six months. Family unity no longer seems to be a major consideration of an individual’s deportability.
Petitions by children
Children born in the US are citizens at birth. US immigration law allows a US citizen child to petition their parents after they turn 21 years of age. But the mere fact that an undocumented immigrant has a US citizen child does not in itself confer a benefit to the parent.
When a parent is put in deportation proceedings, children may become qualifying relatives to support a relief from deportation. This happens when the parent can also claim continuous physical presence of 10 years or more in the US. In this case, the children need not be 21 years old to support the parent’s defense in court.
It is not enough that one has a US 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.
In the case of Helen above, her deportation proceedings began before she had a child.
No anchor babies
Many conservatives in Congress oppose the giving of legal status to young undocumented children under the Development, Relief and Education for Alien Minors 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.
So merely having a US citizen child is no defense against deportation. But one could question whether promoting family unity is still the central principle in US immigration policy. Or has the theme of promoting family unity been sacrificed in the quest for more restrictive immigration policies?
(Tancinco may be reached at [email protected] or at 887-7177 or 721-1963)