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What If I Get Deported but My Children Were Born in the U.S.?

Oct. 5, 2020

During the 2018 fiscal year, the U.S. deported more than 337,000 immigrants, 56% of them had not been convicted of crimes. In 2019, an estimated 16.7 million households had at least one family member who was living here illegally.

Many people who are deported have children who were born here, making them citizens of the U.S. Perhaps these immigrants didn’t go through the legal process when they came to this country, but they have built lives here, working, paying taxes, and sending their kids to school, hoping they might have a better life. What happens to those children when a parent is deported?

You need to know what your rights are and what rights your children have as U.S. citizens. At Gurian Group, P.A., I have helped hundreds of immigrants in Miami and throughout Florida navigate the complicated legal issues that come with deportation.

Being a Parent Does Not Shelter You from Deportation

Being the parent of a child who is a U.S. citizen does not shelter you from being deported.

If you have a child who was born in the U.S. who reaches 21 years of age, that child can petition the government for their parents to receive green cards and be able to stay in the country legally. But remaining in the country illegally for 21 years is a long time to avoid deportation. Furthermore, to be successful, those 21-year-olds must prove they have enough income or assets to support their parents as financial sponsors. That’s extremely difficult for most young adults at that age.

If you have been deported prior to the child’s petition, you will be required to undergo a visa interview at a U.S. consulate during which you will be asked if you ever remained in the U.S. illegally for six months or longer while over the age of 18. Answering “yes” can make you inadmissible for three or 10 years.

Prior to the current presidential administration, the U.S. practiced a policy of “prosecutorial discretion” in which Immigration and Customs Enforcement (ICE) would agree to not deport you at that time, as long as you obeyed the law and if you had ties to family who were U.S. citizens. Prosecutorial discretion is currently not an option.

Cancellation of Removal

If you have been placed in proceedings to remove you from this country, you can apply for a “cancellation of removal” based on four factors:

  1. You have lived in the U.S continually for at least 10 years.

  2. You can demonstrate that being deported would cause exceptional and extremely unusual hardship to their U.S. citizen or a legally permanent resident spouse, child, or parent.

  3. You can demonstrate “good moral character.”

  4. You can prove you have not been convicted of certain crimes or violated certain laws.

Whether or not you are deported or receive a cancellation of removal is at the discretion of an immigration judge. In cancellation of removal, the judge can make you a permanent resident with legal status.

What Happens to My Child?

Your first decision is whether to leave your children in the U.S. or take them with you when you are deported. If you leave your children here and you have no one to take care of them, they will be placed into child protective services. And if your children are not in your custody for 15 of the past 22 months, your parental rights may be terminated. Child protective services can facilitate a reunification plan that requires parents to have regular contact with their children and allows them to participate in family court hearings about their children’s future. But if parents are detained or deported, contact is virtually impossible.

You can request release from detention during the removal process to care for your children; however, ICE currently provides no guidance to its personnel about using this discretionary practice, so it is rarely exercised.

Hiring an Immigration Attorney

If you are or could be deported, you need an experienced immigration attorney to help you, your children, and other family members. The laws are complicated, and exceptions to those laws are virtually nonexistent at this time. The threat of being deported and losing your children is frightening. And if you struggle with English, the process is even more terrifying.

At Gurian Group, P.A., I have assisted hundreds of clients with immigration and deportation issues, so they didn’t have to fight ICE alone. If you live in Miami or elsewhere in Florida, call my office today to discuss your rights and your children’s rights as U.S. citizens. Don’t wait. Call now.