You’ve heard this exclamation: “Why don’t all the ‘illegals’ just go ahead and get legal immigration status?” Well, the answer is that the immigration laws throw up many technical difficulties, and work against common sense. Take a case in point that we are working on, which has problems due to a government error nearly 20 years old.
Almost two decades ago, our client fled violence in El Salvador to seek safety in the U.S. and re-unite with his mother. He came without permission because refugees cannot get visas to visit the U.S., and must wait years for refugee protection. Our client feared imminent death, and felt he had no choice but to escape El Salvador and come to the U.S. without permission.
The U.S. Border Patrol caught our client while he was crossing the border into Texas, and served him with papers to appear before an Immigration Judge for deportation proceedings. During deportation proceedings, he would have had the chance to plead his case to win asylum protection and remain in the U.S. He was told to wait for a court date to be mailed to him.
However, the government made a typographical error and mixed up two numbers in his mailing address. Of course, the notice with the court date was mailed to the wrong address, and our client never knew about the hearing. When he failed to show up, unbeknownst to him he was ordered to be deported, and that outstanding deportation order still follows him around today.
A short time later, the U.S. government granted our client “Temporary Protected Status” (TPS) from El Salvador, meaning he could remain protected in the U.S. temporarily and receive a work permit. Over the next fifteen years, he lawfully maintained TPS and worked in the U.S. and paid taxes. He fell in love and married a U.S. citizen, and now has two U.S. citizen children, both in their teens. His citizen wife petitioned for him to get a green card (permanent residence) through the family category. You would think his story has a good ending right here, but it doesn’t.
Many people who entered the U.S. without permission can’t remain inside the U.S. to claim their green card; they have to return to their home country. This is the beginning of a complex maze of laws that our client has to navigate, because right now he is living here under specific protection from returning to the dangers of El Salvador.
However, our client is lucky to be living in the Ninth Circuit, where there is a new TPS case which would help our client remain inside the U.S. to apply for a green card. But now that maze of laws is taking a bizarre twist to deny him—and many people with similar immigration histories– the opportunity to “get legal.”
First, the deportation order bars our client from staying in the U.S. to get his green card, even though it resulted from a government typo error. To get around this, we filed a motion to reopen with the Immigration Judge in Texas and requested that the deportation order be erased, in light of the government error. Our client’s family was hopeful that the Immigration Court would be happy to help their husband/father along his way to “getting legal” and remain with his U.S. citizen wife and children. But unfortunately, the Judge in Texas denied our motion to reopen, stating it was our client’s fault for failing to notice the typo almost 20 years ago.
As it stands now, the green card process is on hold while we appeal this decision through the system, which could tie up the case for anywhere from 1 to 5 years. Also, we have to argue for a very specific legal interpretation of the deportation regulations: did our client have a duty to notice a typo in his address? Unfortunately, this Texas deportation case is governed by the Fifth Circuit’s laws, which are not friendly to making any exceptions for immigrants who are ordered deported.
Second, our client cannot just leave the U.S. to get the green card, due to the old deportation order. If he leaves without clearing up the old deportation order, he will have to jump through several hoops to get back in, and there is no guarantee he will succeed. Moreover, he still fears danger in El Salvador.
So now our taxpaying client is caught in the middle of an unworkable web of laws, his family is left in distress, and all he wants to do is “get legal.” It seems that no one is more upset with the failings of the immigration system than a U.S. citizen trying to follow the laws and immigrate a loved one, and this case is just one example why. The complexities and the policies often do not work in any logical advantage for U.S. families or our economy.
© 2021 Hill & Piibe, Immigration Attorneys