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David Leopold
Apr 20, 2017 · 6 min read
Photo: Alfredo Estrella/AFP/Getty Images

As the Trump administration incompetently stumbles its way through scandals, resignations, major legislative defeats, and myriad unforced errors, there is one policy they have mastered: striking fear in immigrants. President Donald Trump, Attorney General Jeff Sessions, and Secretary of Homeland Security John Kelly are sending out their “deportation force” to tear families apart.

Trump’s executive order from January 25, 2017, on interior enforcement of immigration laws unleashed a torrent of mean-spirited U.S. Immigration and Customs Enforcement (ICE) actions against long-term residents, many of whom have been in the United States for decades, have U.S.-citizen spouses and children, and have never been convicted of a crime. Make no mistake, throughout his presidential campaign, this is exactly what Trump promised to do. This was never about “bad hombres.” It was always about all 11 million undocumented immigrants.

Take Maribel Trujillo-Diaz, for instance. She came to the United States from Mexico in 2002, fleeing horrific violence at the hands of the drug cartels. She’s married and has four kids, one of whom has special needs. Maribel was placed in deportation proceedings after an ICE workplace raid at Koch Foods, where she worked. In 2014, the Board of Immigration Appeals ordered her deported, but since Maribel was not a criminal or security threat, ICE placed her on an order of supervision, with which she dutifully complied. According to a report published on BuzzFeed, Maribel filed paperwork in early April to reopen her deportation case. Two days later, ICE arrested Maribel outside her home, while her children were inside, and detained her for deportation.

Then there is Roberto Beristain. An undocumented Mexican national, he had lived in Iowa for many years with his wife, Helen, an American citizen, and their family. Last November, Helen voted for Trump, figuring that Roberto, who had no criminal record, would be safe. CNN reported that, in March, ICE detained and deported Roberto.

In a twist of sad irony, Helen’s vote for Donald Trump helped split up her family.

These and other high-profile deportations have focused people’s attention on how the U.S. immigration system works. Most of these immigrants played by the rules. They paid their taxes, supported their families, and followed the law. So, for some, the question arises: Why didn’t they legalize their immigration status? Roberto is married to a U.S. citizen, so doesn’t that mean he gets to stay here? Maribel has four children, so can’t the kids sponsor her for a green card?

Many people will be shocked to learn that the badly outdated U.S. immigration law offers few if any real options for families with an undocumented parent or spouse. Too often, the choice is between hunkering down and hoping that the dreaded ICE knock on the door never comes or risking years of separation from loved ones. Let’s take a look.

Marrying a U.S. Citizen: Not a Guarantee Against Deportation

Most people think that marrying a U.S. citizen is a guaranteed path to citizenship. It’s not. I’ve heard many people say, “After all, she’s married to an American. Why can’t she stay here?” It’s way more complex than that, especially if the immigrant entered the country without documents.

Immigration law generally requires that for an immigrant to adjust or change status to temporary worker or green card holder, he or she must have lawfully entered the United States — even if they’re married to a U.S. citizen. Immigrants who entered the country without inspection — even as young children — generally cannot apply for a green card inside the United States under any circumstances, including if they marry a U.S. citizen.

To further complicate matters, if the undocumented immigrant had, at any time, been placed in deportation proceedings and received a final administrative order of deportation, U.S. Citizenship and Immigration Services (USCIS) cannot adjust the immigrant’s status, because the agency has no authority over the case. The only way to get the case before the USCIS is to ask an immigration judge to reopen it. But that’s nearly impossible to do if the case has been closed for more than three months, and ICE — whose mission is to deport people — must agree. Not surprisingly, that rarely happens.

So, for millions of undocumented immigrants who qualify for a green card through marriage, their only option is to leave the United States and apply for an immigrant visa at a U.S. consulate in their home country. But the minute they leave the United States, another part of the law kicks in to ban them from returning for up to 10 years because of their previous unlawful presence. Spouses of U.S. citizens may be able to get the 10-year ban waived if they can show their absence would cause extreme hardship to their U.S.-citizen or lawful-resident husband or wife.

The family unity waiver process can take months — sometimes years — with no guarantee the waiver will be granted. All the while, the family remains separated.

The pain of this legal Catch-22 was eased somewhat in 2013 when the Obama administration tweaked the application process by adding a provisional unlawful presence waiver, which allows some undocumented spouses of U.S. citizens to apply for waivers before traveling abroad. This change spared many American families from the pain of prolonged separation while the loved one traveled abroad and waited for the waiver to be processed. It’s uncertain whether the provisional waiver will survive the Trump administration.

Children Cannot Sponsor Parents for Green Cards

It’s a common misconception — falsely pushed by anti-immigrant extremists — that U.S.-citizen children can sponsor their parents for legal immigration status. During the Republican primary, candidate Trump railed against “birthright citizenship” — the clause in the 14th Amendment that grants U.S. citizenship to children born on U.S. soil — claiming it was the “biggest magnet for illegal immigration.”

Trump was lying.

In fact, an undocumented parent seeking to obtain citizenship through his or her child faces an arduous 36-year slog: 21 years for the child to be able to sponsor the parent, 10 years of banishment from the United States because of their previous unlawful presence, and five years waiting as a green card holder to be eligible for U.S. citizenship. When you consider the time it takes to obtain a green card, the claim that women come to the United States illegally to give birth and gain legal status is patently absurd.

Bottom Line: Obtaining Legal Status Is Nearly Impossible for Most Undocumented Immigrants

The outdated, rigid, and poorly structured immigration law makes it nearly impossible for most undocumented immigrants to fix their status in the United States. This is true regardless of whether a person arrived in the country on a lawful visa and later fell out of status, or whether they entered the country without lawful inspection by U.S. immigration officers. That’s because once someone enters the country illegally or overstays their visa, the law prohibits them from applying for legal immigration status from inside the United States. Of course, there are important exceptions to this for victims of crime, persecution, human trafficking, and domestic violence. But for most undocumented immigrants, these outdated and rigid immigration laws offer few options and little forgiveness.

Donald Trump is now in control of this messed-up system — and instead of fixing it, he, Sessions, and Kelly are making it worse. Much worse. They’re building a mass deportation force within this broken system with one goal: targeting immigrants who’ve been stymied by the system’s dysfunction. The American people overwhelmingly oppose this wretched policy. And as more of us see neighbors like Maribel and Roberto deported, that opposition will harden.

David Leopold

Written by

Chair, #Immigration Law, Ulmer & Berne LLP, litigator, bylines @USAToday, @CNNOpinion, @msnbc @thehill @tpm @huffpost @HoustonChron, fmr pres @AILANational

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