Answer By law4u team
When a detained immigrant has a U.S. citizen child, this factor can influence the immigrant’s legal situation, especially in cases of removal or deportation. U.S. immigration law allows for family considerations, and the presence of a citizen child may provide some grounds for relief or potential legal options to delay or prevent deportation. However, while family unity is an important factor, it does not automatically grant the right to remain in the U.S.
Legal Considerations for Detained Immigrants with U.S. Citizen Children:
- Impact of Family Unity:
U.S. immigration law acknowledges the importance of family unity and often takes into account the well-being of U.S. citizen children when determining whether an immigrant can be deported or remain in the country.
The presence of a U.S. citizen child in a detention situation can raise humanitarian concerns, and family-based factors may influence decisions regarding release or removal proceedings.
- Deferred Action for Childhood Arrivals (DACA):
While DACA does not apply directly to detained parents, some parents of U.S. citizen children may benefit indirectly if their children are part of the DACA program. This could provide temporary relief from deportation under certain conditions.
The immigrant parent may not automatically qualify for DACA, but their child’s status could be relevant in other cases, such as family-based petitions or humanitarian relief.
- Cancellation of Removal:
One of the main legal avenues for detained immigrants with U.S. citizen children is to apply for cancellation of removal. This is a form of relief that allows immigrants facing deportation to remain in the U.S. if they can demonstrate:
- They have been in the U.S. for at least 10 years.
- They have good moral character.
- Their removal would cause exceptional and extremely unusual hardship to their U.S. citizen child.
This is a difficult standard to meet, but if the immigrant can prove that deportation would cause significant hardship to their child, they may be able to remain in the U.S.
- Humanitarian Parole:
Humanitarian parole may be granted in rare cases where an immigrant is facing deportation but has a compelling reason to stay in the U.S., such as the need to care for a U.S. citizen child. This is not a long-term solution but can allow for temporary stay on humanitarian grounds.
- U Visa or Family-Based Relief:
In some cases, if the U.S. citizen child is a victim of crime and the detained parent is also a victim or has helped law enforcement, the immigrant may be eligible for a U visa. This visa grants temporary status to immigrants who are victims of certain crimes and cooperate with law enforcement.
Additionally, family-based immigration relief may be available, where the U.S. citizen child could petition for their parent’s legal status if the parent is out of detention.
- ICE Discretion and Release:
In some situations, U.S. Immigration and Customs Enforcement (ICE) may use discretion to release a detained immigrant if they have U.S. citizen children, especially if the child’s well-being is at risk or if there is a strong family unity argument.
In cases where a parent is detained, ICE may consider the hardship to the U.S. citizen child in determining whether the immigrant can be released while awaiting removal proceedings or hearings.
Legal Options and Relief Mechanisms:
- Immigration Bond:
Detained immigrants may request an immigration bond hearing. If granted, this allows them to be released from detention while awaiting their immigration court hearings.
If the immigrant has a U.S. citizen child, the court may consider the hardship that the detention would impose on the child, potentially influencing the decision to grant bond.
- Family-Based Petitions:
If the detained immigrant is married to a U.S. citizen or has a U.S. citizen child over the age of 21, the family member may file a petition for a relative to adjust the immigrant’s status.
In cases where the immigrant is the parent of a U.S. citizen child, and if the immigrant has a compelling case, it might be possible to seek adjustment of status through family petitions or other relief mechanisms.
- Appealing Deportation Orders:
If an immigrant is ordered for deportation, they can appeal the decision, particularly if they can show that their deportation would result in significant hardship to their U.S. citizen child. This can be a lengthy process, but it might delay deportation or lead to relief.
Example:
A 38-year-old mother from Honduras is detained by ICE after attempting to enter the U.S. without proper documentation. She has a 7-year-old son who is a U.S. citizen. The mother fears that being deported would disrupt her child’s life and cause emotional and psychological harm. Her attorney files a motion for cancellation of removal, arguing that her son would experience extreme hardship if she were deported. The attorney also requests a bond hearing, citing the child’s U.S. citizen status and the hardship the mother’s detention would cause.
Conclusion:
While having a U.S. citizen child does not automatically grant a detained immigrant the right to remain in the U.S., it can influence decisions regarding release, deportation, and legal options. Various legal avenues, such as cancellation of removal, humanitarian parole, and family-based petitions, may be available to immigrants with U.S. citizen children. Each case is unique, and legal counsel is essential to navigate the complexities of the immigration system and secure the best possible outcome for the immigrant and their family.
