When an undocumented immigrant who has American born children is in removal proceedings facing the possibility of deportation, the immigrant may seek a waiver from being deported because the immigrant’s deportation would cause extreme hardship to his or her children. This is a recognized exception, and if the immigrant can meet certain factors, he or she may be able to avoid deportation.

In claiming that the children will face undue hardship, there is a difference in the kind of information required as proof of the hardship when the children have another parent present in the United States and that required when the parent facing deportation is the only parent present in the United States.

If the parent being deported is the only parent, the court presumes that the children will leave the country with the parent who is being deported. Because the children are American citizens, the court cannot order the children to leave the country with a parent who is ordered to be deported. In order to rebut the court’s presumption that the children will leave with the parent, the parent must present an affidavit in which the parent expresses his or her intention for the children to remain in the United States. The parent has to show how the children will be cared for if they remain in the United States.

When the children’s other parent is in the United States, the parent claiming extreme hardship does not have to provide these affidavits. The assumption is that the children will remain in the United States and be cared for by the remaining parent. There is no requirement of supporting affidavits even when the parent with whom the children would remain is also an undocumented immigrant. The court does not consider the remaining parent’s undocumented status as a barrier to caring for the children. The parent being deported can still claim the children will face extreme hardship if he or she is deported, even when the children remain in the care of a parent who is also undocumented.

If the parent does not intend to leave the children in the United States upon his or her deportation, he or she can still allege that the children will suffer undue hardship from returning to the parent’s country. This may be a more difficult way to prove hardship because the children still have the option of staying in the United States since they are citizens.

As we have discussed before, if a parent of a United States citizen is deported before he or she has the chance to make arrangements for the care of the children, and the children’s other parent cannot care for the children, the children may be sent to foster care. It is therefore important for an undocumented parent to have a contingency plan in place for other family members or friends to care for his or her children if the parent is unexpectedly deported.

Contact an Experienced Immigration Attorney

Undocumented immigrants facing deportation generally have a better chance at deportation hearings if they are represented by an attorney than if they represent themselves. If you have a loved one facing deportation, you need to contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.