Immigration laws offer harsh punishments for individuals who do not cross the border lawfully. With rare exception a person who enters this country without inspection at a port of entry cannot receive a lawful status without returning to their home country to process the paperwork and often leaving the United States triggers a 3 or 10 year bar from them returning.
This could be argued as a just punishment for individuals who usurp our immigration laws and cross our border illegally. Clearly it would an injustice to the millions of individuals who apply lawfully, pay filing fees, and wait a number of years if illegal entrants were rewarded for their behavior with a legal status. Thus, in most cases the law is arguably just.
There is one class of illegal entrant which warrants further review and this is the person who enters illegally as a child. This is because in the United States we have a long standing believe that people should only be punished for illegal acts unless they intentionally performed them. Most children are not considered to have the necessary comprehension skills to “intentionally” perform most illegal acts. Particularly when a child crosses the border they do not often understand it is illegal and as such do not intend to break the law. In most cases they are either following a parent or in the case of infants they are literally being carried by the parent. Despite this clear lack of intent immigration laws do not distinguish between child and adult when punishing entry without inspection.
In a great number of these cases the child grows up only knowing the United States as home. They speak English fluently and were educated in our schools. Most estimates claim that 65,000 people graduate from our schools in this situation per year. The only real difference between them and a citizen is that they cannot obtain a legal status. Often they meet a US citizen and marry, sometimes even having children only to end up deported with a torn family left wondering what happened. This is because even a person married with children who entered illegally as an infant cannot gain a legal status without leaving the country and subjecting themselves to the 3 or 10 year bar from reentry.
Since 2001 Congress has been proposing a solution to this injustice in the form of the Dream Act. Most proposed forms of the Dream Act require unsuspected aliens to:
– be between the ages of 12 and 35 at the time the law is enacted
– have arrived in the United States before the age of 16
– have resided continuously in the United States for at least five (5) consecutive years since the date of their arrival
– have graduated from a U.S. High School, or obtained a General Education Diploma GED, and
– have “Good moral character”
This is clearly solution most individuals in this situation want but to date Congress has been unable to pass such a bill leaving millions of undocumented immigrants without hope for ever obtaining lawful status. There are however a few other options available to individuals in this situation and their situation is not impossible.
The first is marriage to a US citizen who is a member of the military. It has become common practice for the Department of Homeland Security to grant Parole in Place to unsuspected spouse’s of the military. In doing this DHS grants the person a valid entry document, which paroles them into the country and can be submitted as prove of a valid entry allowing them to obtain their green card here.
The second option is that the individual leave the United States before they turn 18. This may seem like a drastic measure but it has many benefits. Chiefly a person cannot begin to accrue unlawful presence until they turn 18. Unlawful presence of 180 days is what subjects a person to a 3 year bar from reentry and unlawful presence of over 1 year subjects them to a 10 year bar. If they leave before they are 18, they can have a family member petition for them to come back or return to the country lawfully without the stigma of entering without inspection and constant threat of deportation.
For individuals over 18 who have already been unlawfully present for over 180 days there are limited options. The first is that they can exit the country and apply for a waiver to reenter based upon a qualifying relationship with a US citizen, most often a spouse. For this waiver to be considered they must show their qualifying relative would suffer extreme hardship were they not allowed to reenter. Extreme Hardship is a legal term and although there is no precise definition of what constitutes extreme hardship, it has been said that the hardship suffered by the qualifying relative must go beyond what would normally be expected when a family is separated. For example a spouse of a US citizen with a medical condition for which they take care of them would have a strong case for this waiver. One problem is these waivers are left to the discretion of the immigration officer reviewing your case so it is difficult to predict how they will view your situation and if they side against you, you are still subject to the bar from reentry.
The final option can only be argued before an immigration judge. It is called cancellation of removal and requires the individual be a person of good moral character with 10 years of continuous presence in the United States. It also requires that the individual would have a qualifying relative who is a US citizen and that citizen would experience exceptional and extremely unusual hardship were the person deported. This is an even higher standard to meet than the previously mentioned extreme hardship standard. Likewise, it is left to the discretion of the immigration judge and it is difficult to predict whether they will approve it or not. Of course its denial in most cases results in removal from the country and a 10 year bar from reentry, so it should only be contemplated when there are no other options.
Thus, passage of the dream act is the only real solution to legalizing the status of a qualifying individual who entered without inspection as children. It makes sense because one would think we have not grown and educated these children to deport them. Although it makes sense, reality is that until it is passed that is exactly what we will continue to do. However, individuals who entered without inspection are not without hope. They do have options and should explore them with a licensed immigration attorney immediately, particularly if they are approaching the age of 18 where they begin to accrue unlawful presence.