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?
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.
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,
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.
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.
Get free answers from experienced attorneys.
24,130 answers this week
2,489 attorneys answering
Don't speak legalese? We define thousands of terms in plain English.Browse our legal dictionary