I have been living and working in the U.S. for about six years, after entering illegally. I am married to another undocumented person, and we have two daughters, born in the United States. The problem is our neighbor. She doesn’t like us, and keeps threatening to call the immigration agents and have us deported. If she does call them, what will happen to us?
You are indeed at risk that your neighbor will contact U.S. immigration authorities (specifically, Immigration and Customs Enforcement, or ICE). However, nothing will happen immediately or automatically.
First, there is the question of whether ICE will act on this tip. They do not have the resources to follow up on every tip they get. They might simply ignore it.
Unfortunately, the standards by which ICE might decide whether to act on or ignore your case are, under the Trump administration, less clear than they used to be.
In the past, in ICE agents were expected to follow a policy in which they would take a closer look at each individual case and decide whether to exercise something called “Prosecutorial Discretion.” This means that they examine the person's or family's situation—their history of responsible work and family life in the U.S., and family ties to U.S. citizens (such as your daughters)—and sometimes decide not to initiate removal (deportation) proceedings against them.
The idea was that they are supposed to direct government resources at people who have committed crimes or are otherwise negative forces in U.S. society. Even if ICE has already set court proceedings in motion, they can use Prosecutorial Discretion to close them; and in some cases even allow the person to obtain a work permit.
With Donald Trump in office, however, and issuance of the Presidential Executive Order: Enhancing Public Safety in the Interior of the United States, this picture has changed completely. Now, nearly everyone is viewed as an enforcement priority. Although the order appears to focus on “crimes,” mere criminal charges or suspicions by immigration officers are sufficient to put someone at the top of the priority list. This list also sweeps in anyone who has used a fake green card or Social Security Number.
What's more, a follow-up implementation memo by DHS Secretary Kelly states that "prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws." In other words, there is no remaining directive as to who is at the bottom of the list and should be left alone. Recent news reports about indiscriminate ICE raids and deportation of law-abiding family members demonstraet that this new policy is being followed to the letter.
That takes us back to the question of whether ICE has the resources to act on any tip. It still doesn't. But as you no doubt realize, it's a game of chance at this point.
If ICE does attempt to remove you, agents may arrest you and/or your wife. This agency’s history of making sure that children are cared for in such a situation is not great, so make sure your children know where to go and who to contact if you are not at home when expected. It might be wise to consult an immigration attorney in advance about your situation, so that you have already lined up someone who can start acting on your behalf and figure out where you are being held.
After an arrest, you will most likely be charged with being deportable, released on bond, and then told to appear in Immigration Court on a certain day. A document called the Notice to Appear or NTA will describe the charges against you (that you’re in the U.S. unlawfully, most likely) and give you a date for your first court appearance, called a Master Calendar hearing. If you have any defenses to deportation, you can then ask for a full court hearing at a later date (called a “Merits Hearing.”)
For a review of some of the possible defenses that you might be able to raise in order to allow you to stay in the U.S., see Immigration Court Defenses: Avoid Deportation.