A lady overstayed her visa for 11 years. She has a child who is 8 years old. The child speaks English fluently as well as Spanish. The child maternal gand mother is 62 years old and lives in the same Latin country from which her daughter is a citizen. The lady in this scenario has no crimanal records. And has never been married. Question: If immigration arrests her, will she be deported even when she has been in the U.S., more than 10 years, and has an U.S. born child?
Generally, having U.S. citizen child does not prevent deportation. However, depending on the circumstances of this particular case this person may qualify for a cancellation of removal, a discretionary relief available to an alien in removal proceedings who
1) Has continuously resided in the United States for at least ten years; and
2) Has been a person of good moral character throughout this time; and
3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in INA §212(a)(2), §237(a)(2), or §237(a)(3); and
4) Establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a United States citizen or legal permanent resident.
Exceptional hardship is a high threshold to meet and this person must seek advice of an experienced immigration attorney to evaluate her case.
Best of luck,
Information provided does not constitute a legal advice, does not create attorney-client relationship and for informational purposes only.
Sounds as if she'd be eligible for cancellation of removal for non-lpr's. Whether or not the application gets granted is another question which is fact specific. This person should meet with a knowledgeable immigration attorney asap and fully discuss all the facts in her history.
She can be placed in removal proceedings. She is eligible to apply for relief from deportation in the form of cancellation of removal.
INA §240A(b) allows the Attorney General (usually an Immigration Judge or the Board of Immigration Appeals) to cancel the removal of a non-permanent resident from the U.S. who:
Has been physically present in the U.S. for a continuous period of ten years prior to the institution of removal proceedings. (This requirement is not applicable to persons who have served a minimum of 24 months in the U.S. Armed Forces, was present in the U.S. during his enlistment or induction, and is either serving honorably or has received an honorable discharge.) “Continuous” means that the person can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the ten-year period.
Has been a person of good moral character for ten years;
Is not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grouds).
Whose removal would result in exceptional and extremely unusual hardship to his/her spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
Based on the information in your question, if she is arrested by ICE, she will probably be placed under removal (deportation) proceedings. There may be defenses she can raise, but she would need to speak with an experienced immiration attorney for proper guidance and assistance, as this is a very complicated area of the law.
This answer is of a general nature and should not be relied upon as final, nor is it intended as legal advice. A consultation with an experienced attorney is always the best way to go.
My colleagues are correct; there is no relief automatically given to undocumented aliens who have US children. A Miami advoacy group American Fraternity has direct filed in the US Supreme Court a Complaint - Class Action on this specific issue.
Legal disclaimer: The statement above is provided by CC Abbott is based on general assistance and not intended to be a legal opinion because not all the facts are provided. The person requesting information and all others reading the answer should retain an attorney who is permitted by the state bar within the jurisdiction who can examine the complete facts and provide a legal opinion on your case. All information provided in the above answer and other information provided by CC Abbott does not create an attorney/client relationship within any state of Federal law.