Clogging the Immigration Courts

The February 27, 2017 issue of The New York Times carried an article titled He’s a Local Pillar: Now He Could be Deported. A careful read of this news account will help you to better understand the flaws in the Trump Administration strategy of going after everyone in the US because they are “law breakers.” It also points out why real immigration reform is needed, not just political pandering and scapegoating.

Since I don’t have all of the facts and am making assumptions based on the news story my comments should not be considered as straight legal advice on how this poor family can get out from this catastrophe.

According to the story, Juan Carlos Hernandez is 38 years old from Mexico and manages a popular Mexican restaurant in West Frankport, Illinois. He has lived in the US since the mid-1990s having entered the country illegally. He is married to a US citizen (his wife was recently naturalized) and has three US citizen children. He is the manager of a Mexican restaurant 1990 in the town and by all accounts has been a model citizen and a pillar of the community. The only negative in his background is that he has two convictions for driving under the influence (DUI) from 9 years ago.

While in a technical sense Juan Carlos is here unlawfully and could be deported, since he now has a lawyer he should be able to avoid actual “deportation.” His effort to stay will be long, scary and expensive, and it will be particularly burdensome on the US government.

Here are two reasons why even though his life has been turned upside down he should be able to prevail. First because he is married to a US citizen, while technically deportable he should be eligible for permanent residency – in his case it will have to be an immigrant visa since he entered the country illegally and therefore never had any status in the U.S. The only reason why he might be unable to get permanent residency is if he had a record of serious serious crimes or there was something else in his background standing in his way. The second reason is that because he has been in the US for more than 10 years and has close family ties with US citizens (his wife and children appear to be US citizens) and might be able to prove the requisite level of hardship to them if he is deported he could be eligible to seek what is called “cancellation of removal.” This “cancellation” would result in the proceedings being terminated and he would be granted permanent residency.

It is very likely that his US citizen wife petitioned for him to get status and that is how ICE located him in the first place. If she had petitioned for him when she was a permanent resident there would have been a wait of more than two years before he could even get an interview for an immigrant visa. His case was further complicated by changes made in the 1996 immigration laws which made it very risky for someone like him to leave the country to be interviewed for an immigrant visa. This is because when Juan Carlos entered the country without a visa he began to accumulate “unlawful presence” and the law penalized him by making him ineligible to return without first getting a waiver. The Obama Administration created a procedural reform which would enable someone like Juan Carlos to seek the waiver before leaving to be interviewed for his visa. It doesn’t seem likely that the Trump Administration will honor that waiver.

So now that ICE has arrested him, Juan Carlos has few choices if he wants to stay with his family in the US. Let’s not forget that he is the only one in his family who is not a US citizen. If he leaves he will not be able to come back for some time, because he will have to wait in Mexico before he will be able to get his permanent residency. Meanwhile, it is unsure if that restaurant in West Frankport, Illinois will keep his job open or what will happen to his kids and wife while he languishes either in detention or in Mexico trying to come back.

I am not the first to make this point. An article by Julia Preston of the New York Times in December, 2016 described the staggering backlogs in immigration courts. In Denver, Colorado the delay between arrest and hearing was more than 18 months. In San Francisco it is even longer. The immigration courts already have more than 520,000 cases waiting to be heard and all of this new enforcement effort yields are additional cases. So who benefits from this practice? Probably the private prison operators who operate the “detention centers” and immigration lawyers who will have to be hired to represent these people.

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