Can You Be Deported If You Have a Child in the US?

Posted by Frank Gogol

Deportation is something that non-citizens want to avoid. Still, it’s a likely scenario if you are an illegal immigrant or overstay your visa. Many non-citizens end up having children while in the U.S., and you may be wondering if you will be allowed to remain in the country after having the child. Can you be deported if you have a child in the U.S., or you’re safe from deportation?

Can I Be Deported If My Child Was Born in the U.S.?

Children who are born in the U.S. automatically become U.S. citizens. But is the situation the same when it comes to their parents?

Well, if you’re the parent of a child born in the U.S., your citizenship status is different. You have your own status, and the child has his/her own. So, just because your newborn obtains citizenship, it doesn’t mean you’ll get yours – the immigration status is separate from that of your child.

As such, if you are an illegal immigrant yet your child has been born in the U.S., you may be wondering whether deportation is still a possible scenario for you. Well, it can definitely happen. Many parents of U.S. citizen children have been deported, so it could happen to you too.

So if you are undocumented and unable to obtain any sort of citizenship while in the U.S., then you can be deported if the administration wants to do that.

The only thing that is possible is getting permanent residency when the child becomes of legal age. If that’s the case, the child can choose to sponsor his/her parent to become a permanent resident. Other than that, the parent isn’t allowed to remain if they are in the country undocumented or if they overstayed their visa.

What Happens to the Children of Deported Immigrants?

Now that we’ve established that parents of U.S. citizens can get deported, there’s another concern being raised. Where do children go after their parents face deportation?

One of the main things that could happen is having your child sent into foster care. But this may not be the best for the child, and it could be quite challenging and affect his/her mental health.

A thing that you can do if you fear deportation and don’t want the child to be part of the foster care system is to make a custody transfer. With custody transfers, the child will be assigned to another trusted adult, someone who can be an immediate family member in the U.S. or a friend.

The custody transfer will begin with a voluntary, written agreement to offer your legal and physical custody rights to someone else. As a result, another person will become physically and legally able to take care of your child. They will make decisions regarding your little one’s education, health, welfare, and so on. This person will become the legal guardian of the child.

But you should be aware that if you want to regain custody at one point in the future, then it will be a difficult process. First of all, a petition will have to be filed with the court, and then it’s the judge who has to decide if it’s in the best interest of the child to be sent back into your custody.

If you want a better chance at regaining custody, you can mention in your custody transfer arrangement that you only want the custody to be in place during your deportation. Of course, this doesn’t mean that the court will be unable to make the final decision, but it gives you higher chances of regaining custody later on.

Also, bear in mind that if the other parent has custodial rights, his/her final consent will have to be given to give them custody of the child. The other parent may object, in which case you can go to court and wait for the judge to make the final decision.

On the other hand, if the parent agrees, or if you’re the only legal parent of the child, you and the intended custodian have to deal with an agreement. You have to sign this agreement in front of a notary, after which you submit it to court and wait. A hearing will be scheduled so it can be decided if it’s best for the child to be given to the proposed custodian. If it is, then the judge will approve it.

Avoiding Deportation and Prosecution Discretion

There is something known as “prosecutorial discretion”, which is a U.S. government policy. Basically, because ICE is not able to deport every single person, they tried their best to focus on cases with higher priority, such as criminals. As such, they gave up on people who have multiple ties to the country.

The “prosecutorial discretion” is very helpful. It doesn’t grant the child’s parent a green card or any similar document but promises not to deport them, at least for a while.

Things changed when the Trump administration took charge of everything. The priorities have been dropped by ICE. Consequently, they will do anything in their power to deport any undocumented immigrant they can find, no matter what. If Congress does something about it, things may change for the better, but we can only wait and see.

Also, if a parent is undergoing removal proceedings, they can apply for “Cancellation of Removal”, but only under certain conditions. That being said, they can apply if they:

  • Have shown a “good moral character”
  • Have lived in the U.S. for a minimum of 10 years
  • Have not taken part in crimes or gone against any law
  • Have shown that deportation from the country may cause “exceptional and extremely unusual hardship” to the relatives who are permanent residents or U.S. citizens

Lawful Permanent Residency for Parents of U.S. Citizens

If your child turns 21, then he/she can petition for you and sponsor you to become a green card owner. You can gain permanent residency this way. But there are things to consider in this situation too. For this to be possible, the child has to earn enough money to become your sponsor, since you will be coming to another country and you need assistance.

Also, if the parent is still in the country when the child turns 21, then he/she will have to attend a visa interview at a U.S. consulate. There, the consular officer must determine if the parents are not admissible due to certain reasons. These could include staying in the country for more than 6 months if over 18 years old, which will cause them to be barred for ten years.

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Conclusion

So, can you be deported if you have a child in the U.S.? You definitely can, especially under the Trump Administration. This is why you need to make sure you make preparations early on in case you will be removed from the country. You can start looking for another person to become the child’s legal guardian. It could be a friend or another family member. You will just have to make an agreement with the intended custodian and perform a custody transfer.

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Guide to EOIR-42B and Cancellation of Removal

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