James Winnings 2013-01-16 04:03:33
Undocumented Immigrants & Their Rights To varying degrees of success, some political leaders, such as Mitt Romney and Russell Peirce, have encouraged self-deportation as a solution for the millions of people living in the United States without lawful status—that is, to make economic and legal conditions so inhospitable to the undocumented immigrants that they voluntarily return to their countries of origin. Self-deportation, however, is not a realistic option for many undocumented immigrants because many of their immediate family members are United States citizens. They have United States citizen children and spouses, and self-deportation, or any deportation for that matter, frequently means permanent or long-term separation from their family members; effectively, deportation may destroy their family unit. In fact, currently, there are approximately 5,100 United States citizen children that are wards of the state because both of their parents have been forcibly removed from the country (See U.S.-Born Kids Of Deported Parents Struggle As Family Life Is ‘Destroyed,’ by Helen O’Neil, August 25, 2012, downloaded November 20, 2012 http://www.huffingtonpost.com/2012/08/25/us-born-kids-deportedparents_ n_1830496.html). Understandably, many undocumented immigrants and their United States citizen loved ones live in a constant state of fear that in any moment they may become separated by the United States’ seemly unnavigable immigration laws. Yet, while harsh and unforgiving in some instances, United States immigration law does afford the undocumented certain fundamental rights, which may mitigate or completely prevent family separation. The United States government cannot arbitrarily take and deport someone from the United States. United States Immigration and Customs Enforcement (ICE) of the Department of Homeland Security (DHS) must place an alleged undocumented immigrant into removal proceedings by formally serving the person with a notice to appear, and charging him to be an alien that is removable from the United States. The person has the right to have his day in court: he has the right have an attorney, at no expense of the government, and to have his case brought before an immigration judge of the Executive Office of Immigration Review (EIOR), which is part of the Department of Justice. There he can present evidence, and review any evidence the ICE may bring against him. DHS has the burden to prove that the person is actually an alien, and that the alien is removable from the United States. If the government successfully meets its burden, the alien has the opportunity to seek and prove that he is eligible for relief from removal. In addition, a person accused of being an undocumented alien living in the United States may be detained by and held in custody by DHS, however, so long as the person is not a threat to the community and has a minor or non-existent criminal record, the person frequently can be released on bond. Some common forms of relief from removal for undocumented immigrants who have United States citizen (USC) or lawful permanent resident (LPR) family members are cancellation of removal and adjustment of status. With special exceptions, if an undocumented immigrant has a USC or LPR spouse, parents or unmarried children under the age of twenty-one, has lived in the United States for ten or more years, and has a mostly clean criminal record, he may remain the United States, with a work permit, for several more years after being charged as an undocumented alien, and even after admitting those charges, while his case is litigated. Ultimately, many immigrants will lose their cancellation of removal case because they must show that their immediate family would suffer exceptional and extremely unusual hardship if they were not allowed to remain in the United States. The hardship standard is very difficult to achieve, however, if the undocumented immigrant has a USC or LPR family member with a serious disability, he has a much better chance of winning his cancellation of removal case and becoming a lawful permanent resident. Under adjustment of status, if the undocumented immigrant originally entered the United States lawfully, but overstayed his allotted time, or if he was the beneficiary of a family petition from before April 30, 2001, and currently he has an immigrant visa available to him, commonly either through a USC spouse, a USC son or daughter over the age of twenty-one or from another family petition filed several years beforehand, he may adjust to become a legal permanent resident. In addition, the law provides undocumented immigrants that have been victims of domestic abuse or extreme cruelty at the hands of their USC or LPR spouses or parents to immigrate lawful to the United States without their family members. Finally, a relatively new but very helpful opportunity for some undocumented immigrants is to request that DHS administratively close their case as a matter of prosecutorial discretion. In recent years and months, DHS has decided to allow many undocumented immigrants remain indefinitely in the United States with just a work permit because those immigrants have USC or LPR family members, have lived here many years and have made contributions to the community, and they have no or very minor criminal history. This can be helpful to immigrants who don’t have disabled family members or any feasible way to immigrate to the United States. In short, undocumented immigrants with USC or LPR family members live under the threat of permanent family separation, however, there are a variety of procedural and substantive safeguards that can help protect the immigrant and his family. So long as said undocumented immigrant has behaved well in the United States, and has not committed serious criminal offenses, he can rest a little assured that with a good immigration attorney, he and his family do not face imminent separation, but may actually have a variety of options to protect his family.
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