How Can You Be Deported Away From Your Kids?

by | Jan 19, 2021 | Immigration

How can you get deported if you have a minor child in the US? Unfortunately, deportation is commonly faced by those who are undocumented or been convicted of certain crimes. Statistics indicate that in the year 2018, almost 250,000 immigrants had been deported. Many of those who are deported have at least one child who was born in the US. This makes the deportation process more stressful and overwhelming.

Research suggests that in 2018, there were 4.4 million children below the age of 18 years who lived with at least one undocumented parent. From 2011 to 2013, nearly half a million children had to experience the deportation of at least one parent. Such immigration enforcement actions tend to have immense emotional, developmental, psychological, and physical impact upon children. To prevent the possibility of deportation, it is important to be aware of your rights and responsibilities while you are living in the US.

How can you get deported if your child was born in the US?

Children who are born in the US automatically become US citizens. However, if you as their parents have citizenship of another nation, then your status is different from theirs. Having a US citizen child does not automatically guarantee citizenship to the undocumented parent.

If you are staying in the United States illegally, you are at risk of being deported. The best way to avoid deportation from happening is to work with an immigration lawyer and identify methods that would help you to remain in the country. Since every case is unique, different rules will apply for those seeking to stay in the US.

How you can avoid deportation

There are several ways in which you can avoid being deported as an undocumented individual. Let’s explore some of the ways below:

Prosecutorial discretion

A US government authority known as prosecutorial discretion may apply in certain situations. While it does not necessarily provide a green card to the undocumented parent, it can help to stop or defer deportation for at least some time.

Also, parents who have been placed into removal proceedings may be eligible to apply for a “Cancellation of Removal”. Conditions under which a cancellation may apply include:

  • A demonstration of “good moral character”
  • Proof of not having been convicted for crimes or having violated any laws
  • Proof of having lived in the US for at least 10 years
  • Proof that deportation from the country might cause “exceptional and extremely unusual hardship” to relatives who are lawful permanent residents or US citizens

Obtaining permanent residency as the parent of a US citizen

When your child turns 21 years of age, they can petition for you to obtain a green card which will allow you to acquire permanent resident status. However, there are several considerations to this rule. Primarily, your child will need to earn enough income to be able to sponsor both parents by the time they are 21. Or, there will be a need for a cosponsor.

Further, both parents are required to attend a visa interview at a US consulate if the parents are still in the country when their child turns 21 years old. The consular officer will assess whether each parent is “inadmissible” on several grounds. If the parent entered the US unlawfully and  has illegally spent more than 180 days in the US at an age greater than 18 years, they may require a waiver and consulate process.

You might be able to apply for a waiver if you are declared inadmissible by the consulate officer. However, this waiver may only be useful if you can prove that refusal of the visa would cause extreme hardship to your US citizen family members. Note that any hardship to your children who are US citizens would not qualify in this situation. If you would like more information about how to obtain permanent residency, speak to an immigration attorney today.

What arrangements can be made for children of undocumented immigrants?

As parents who are potentially facing deportation, you will need to consider making living arrangements for your children. They are several options that you could pursue:

Firstly, you could take your child along with you. It is quite typical for children to leave the country with their parents. It is often the best suited option for younger children and parents who would like to keep their family unit intact.

Secondly, if you want your child to remain in the US, you can designate a US citizen to be their legal guardian and opt for a custody transfer over to them. A legal guardian could be a reliable friend or any other family member. As part of the custody transfer, you will sign a voluntary, written agreement wherein you offer your custody rights over your child to another person. This allows that person to legally look after your child and make decisions pertaining to their education, health, and overall well-being.

In the last case, if your child does not leave the country with you and you do not find a legal guardian for them, then they will likely enter the foster care system. This option is likely not the best one for your child as it can severely affect their emotional and mental health. The process of deportation of a parent is usually the hardest for children. Sufficient time and care must be given to make proper arrangements for your children so that the deportation process is less stressful for them.

Detained Parents Directive

The Detained Parents Directive is a policy issued by ICE offering guidance regarding the detaining and removal of non-citizen parents of US citizen children. According to this policy, ICE agents should try to cater to the parent’s efforts pertaining to arranging for their child’s care before law enforcement takes temporary custody of them. If you end up getting deported, you will be able to decide what happens to your children.

If you are facing deportation or anticipate getting deported due to a visa overstay, you need to gather information about your options. Contact Yemi Getachew’s Immigration Law Office for a personal consultation for your case.

What happens to your child if officials deport you?

If you do not make prior arrangements, your child may end up in foster care, and your child could face mental and physical issues. You may also legally give your child to someone else to raise. They get to make all the decisions for your child, so if you come back to the United States later, it may be hard to gain control of your child. You should work with an experienced San Jose immigration lawyer, who may be able to get the judge to agree that the custody transfer is only for the length of time of your absence.

Applying for cancellation of removal in San Jose, California

If you have lived a life of high moral standards and developed ties in the community, you may be able to apply for a cancellation of removal before you are deported. In order to qualify, you must have lived in the U.S. for at least 10 years. You will also need to prove that your deportation will cause undue stress to U.S. citizen or permanent resident spouse, parents or unmarried children under 21..

If you are in this situation, speaking with a lawyer may be very beneficial. Your attorney can advise you on the best possible course to pursue in your circumstances.