Ask an Immigration Lawyer: I have nothing in Mexico

I’ve been here since age 5. Now I’m 24 and have 2 kids. I’m very scared about being deported because I have nothing in Mexico. Is there a way I could get legal status?

The are basically two ways to attain legal status in the U.S. Through affirmative or defensive means. The most common affirmative way is based on (1) close family ties to U.S. citizen or  lawful residents, (2) an offer of employment from a U.S. employer or (3) a request for political asylum based on past persecution or fear of future persecution in the home country.

The most distant relative that is recognized for family-based immigration is sibling of a U.S. citizen. For residents, the most distant recognized are married sons or daughters. Your question does not mention a husband so I assume you are not married. You must wait until your U.S. citizen children qualify to petition for your immigration when they reach age 21. Until then, you must explore other means.

If the father of your children is either a citizen or resident, and you are still together, it would help to get married. However, even through marriage to a U.S. citizen, you would not qualify to complete your immigration in the U.S. This is because you appear to have entered illegally. Still, it is likely that you would be allowed to remain in the U.S. until your scheduled immigration interview at the end of the process. Your interview would have to be at the American Consulate in your home country.

The next step is difficult, because you would be denied the visa at the interview, but you could apply for a waiver (pardon) based on extreme hardship to your U.S. citizen or resident spouse. The law does not allow you to file for the waiver until you are denied the visa. This means that you would have to wait outside the U.S. until a decision is made on the application for waiver.

Depending on your country of nationality or last residence, you may qualify for asylum. While the law requires that you file the application within one year of arrival in the U.S. there are several exceptions to the rule. In your case the most worthy of examination would be “changed circumstances” in your home country. This is not something that can be addressed in this article because your country is not known.

There is also a defensive means of seeking legal status. A person in your position who is in removal proceedings before an immigration judge, may request cancellation of removal based on (1) 10 years of presence in the U.S., (2) good moral character, and (3) exceptional and extremely unusual hardship to U.S. citizen children.

The first 2 requirements are usually easy to prove, but the third is very difficult. Hardship to you does not count, only hardship to your citizen children or citizen or resident parents or spouse.

The more difficulties your children would face in Mexico, the more likely you are to be granted cancellation. Any disabilities, learning difficulties, physical or emotional ailments, their age, family in the U.S. or home country, as well as home country conditions would be considered and evaluated.

So if you are detained by immigration, effective legal representation is paramount because good lawyering and thorough presentation of your case could result in resident status granted by the immigration judge.

***

CAVEAT: The above is not a complete legal analysis, does not constitute legal advice, nor should it be construed as such. For a case specific analysis, consult an experienced immigration attorney for a private and extensive review of the facts of your case.