Will having U.S. citizenship children prevent deportation of undocumented immigrant?

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Question:

My husband and I came to the U.S. from Mexico illegally, by crossing the border, and we have been living here for five years. We both work doing housekeeping, gardening, and other temporary jobs. We do not feel ready to start a family right now, but our friends tell us over and over that if we have a baby, it will be a U.S. citizen, and so immigration will not deport us. Is that true?

Answer:

The part about a baby who is born in the U.S. being a U.S. citizen is true. As for the rest of the advice that you’re receiving, it is not quite that simple.

One possibility that your friends might be thinking about is that U.S. citizens can petition for their parents to receive green cards – but only after the citizen child turns 21. (Also, the fact that you entered without inspection could further complicate matters even after those 21 years have passed.) See Nolo’s FAQ, “How soon can the U.S.-born child of an undocumented immigrant petition for the parent?” for details.

Another thing that your friends might have heard of is a U.S. government policy known as “prosecutorial discretion.” The idea is that, because U.S. immigration enforcement authorities (“ICE”) cannot deport everyone, they should concentrate their efforts on high priority cases such as criminals – and drop the cases of people with many ties to the United States, including family. By granting "prosecutorial discretion," they don't give you a green card or anything like it, but they do promise not to deport you for the present.

If you had U.S. citizen children, that would indeed be a tie to the United States that might make you more likely to receive prosecutorial discretion if you were arrested by ICE. But so is your long stay and positive work history. So having children just for this purpose seems like an extreme measure. (Not to mention the fact that ICE is notoriously inconsistent in applying this policy, and sometimes deports people whom you’d think would be left alone under this policy.)

For more information on prosecutorial discretion, see “Which Undocumented Persons Are Helped By Prosecutorial Discretion.”

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