Our Soldiers' Undocumented Families

Last week, I won the appeal in a case involving the foreign born husband of a woman who was set to deploy to Afghanistan over a year ago. She is now serving with the U.S. Army in Iraq. Until we were victorious on our appeal, her husband was subject to removal from the United States because he had been illegally here since childhood when his parents brought him over the border from Mexico. Last Friday, the New York Times, ran a story about other soldiers whose spouses are not documented and the constant fear of deportation that looms over them. As my client's wife argued before the Immigration Court, which denied her husband legal permanent residence, how can I properly serve my country if I do not have the peace of mind of knowing that my husband and our child, who was born in the U.S., are safe from the threat of being separated?

So the Times article rang familiar to me when I read it. It profiles a Filipino-born, U.S. naturalized lieutenant, his Filipino wife, who is not here legally, and their three year old American-born daughter. This man had never before wanted to reveal his wife's undocumented status since he believed no one would understand, although the situation undoubtedly affects many people in the U.S. Armed Forces. He pointed out that people's biases against illegal immigrants had made it uncomfortable for him tell his wife's story. The Times also confirmed that, "the legal boomerang that snared her and many others was created in 1996, when Congress imposed automatic restrictions on illegal immigrants, barring them from returning for periods of 3 to 10 years after they leave the country, regardless of whether they were deported or left voluntarily. However, in many cases the law also requires immigrants who are approved for legal documents to complete their paperwork at American consulates in their home countries." This is the same situation which my client faced. If he left the the country to process at the U.S. consulate to obtain the visa that would make him a permanent resident through his marriage to a citizen, he would trigger a ten year bar from returning because he had lived in this country illegally for more than one year. At the time of its passage, we called this provision the "illegal Mexican" law because it clearly affected Mexicans (and Central Americans) disproportionately. Most other nationals who are present in the United States illegally have overstayed a visa, which, although a violation of immigration law as well, still allows them to obtain their "green cards" inside the U.S. when they marry a U.S. citizen, without ever leaving and hence triggering the burdensome 3 or 10 year bars to return.

The difference in my case is that the immigration authorities had caught up with my client and so he had another means by which to gain lawful permanent residency (LPR) called "cancellation of removal," which is available only as a defense against removal. It is a defense that allows one to gain status if he can prove to an immigration court that he has lived continuously in this country or ten years; has "good moral character"; and his or her U.S. citizen or LPR spouse, child or parent would suffer exceptional and extremely unusual hardship were the relative deported. As you can imagine, this is a very difficult standard for people to meet. To assess a claim, I often ask a potential applicant whether his or her spouse has a terrible illness, or whether his or her child is disabled, and find myself saying, "too bad," when a person gladly reports that his or her family's health is just fine, thank God. It is a cynical legal provision that generally allows only those families who who have experienced pain and suffering from gaining its benefits. As such, I come across few meritorious cases.

When I met my client, who was detained outside of Buffalo, although he grew up in California, I thought I had the perfect case. After all, my client had been his child's primary caretaker in these first few years of life, and it was clear in my mind that if his wife was about to deploy to a war zone, leaving behind the couple's young child, both mother and child would suffer the requisite hardship if my client were deported. Who would care for the child if one parent was serving abroad and the other had been deported? And what if the mother were killed in combat? The child's grandparents were not authorized to live in the U.S. either so having them care for the child was a tenuous option. But the immigration judge did not see it that way. He ordered my client deported, and we appealed. Fortunately, the Board of Immigration Appeals agreed with us and granted my client cancellation of removal. He will get a "green card.".

However, while my client is back in California with his child, sadly, the lieutenant in the news article is waiting for immigration reform to keep his wife in the United States.