Will Having U.S. Citizen Children Prevent Deportation of Undocumented Immigrant?

Only with luck and a lot of waiting can children who are born in the U.S. help parents here illegally to remain.

By , J.D.

For many non-citizens who either cross the southern U.S. border illegally, or overstay a visa, giving birth to children is a natural next step in their family's life. A baby who is born in the U.S. becomes a U.S. citizen automatically. But does that mean that the parents receive any added rights to immigrate to the U.S., or at least to avoid removal (deportation)?

The answer is not a simple one.

When Parents of U.S. Citizens Can Obtain U.S. Lawful Permanent Residence (A Green Card)

It's true that U.S. citizens can petition for their parents to receive green cards; but only after the U.S. citizen child turns 21. Staying in the U.S. without permission for all that time could be difficult.

Also, anyone who entered the U.S. illegally (without inspection) faces further complications. One is that, after turning 21 and petitioning for the parents, the child will need to be earning enough money to serve as the parents' financial sponsor (or the family will need to have enough assets to make up the difference).

Another issue is that, unless the parents are still in the U.S. at the end of the 21 years, they will need to go to a visa interview at a U.S. consulate. The consular officer will inquire as to whether each parent is "inadmissible" on various grounds; in particular, for having spent more than 180 days (six months) in the U.S. illegally while over the age of 18. If so, the person might be barred from the U.S. for either three or ten years. See How soon can the U.S.-born child of an undocumented immigrant petition for the parent? for additional discussion of this issue.

Some people can apply for a waiver of the unlawful presence ground of inadmissibility, but only if they can prove that being denied the visa would cause extreme hardship to their own U.S. citizen or lawful permanent resident parents or spouse or U.S. citizen fiance. Hardship to U.S. citizen children does NOT count in this context.

Avoiding Deportation Based on U.S. Citizen Children

Another thing that your friends might have heard of is a U.S. government policy known as "prosecutorial discretion" or "deferred action." Because U.S. immigration enforcement authorities ("ICE") cannot deport everyone, they typically 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," the authorities don't give the parents a green card or anything like it, but they do promise not to deport them for the present.

Under the Trump Administration, ICE dropped this set of priorities, and attempted to deport virtually any undocumented immigrant with whom it comes into contact. However, among the Biden Harris administration's first acts was to reestablish enforcement priorities and bring back the possibility of deferred action and prosecutorial discretion. Unfortunately, a federal court struck down that enforcement priority list, and then a higher court put that court's order on hold, so the matter remains unsettled. In any case, the government's approach is still unlikely to return to the harsh days of the Trump era in the near future.

Cancellation of Removal a Possible Remedy in Removal Proceedings

Even an undocumented parent who is placed into removal proceedings might not be out of luck. If he or she has been living in the U.S. a long time, it might be possible to apply for what's called Cancellation of Removal (under I.N.A.) § 240A(b)(1)(D)), based on:

  1. having lived (been "continuously physically present") in the U.S. for at least ten years
  2. a showing that removal ("deportation") from the U.S. would cause "exceptional and extremely unusual hardship" to a qualifying relative or relatives who are U.S. citizens or lawful permanent residents
  3. a showing of "good moral character,"
  4. and proof of not having been convicted of certain crimes or violated certain laws.
An immigration judge who is convinced can, as a matter of discretion, award the parent lawful permanent U.S. residence.

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