Removal, previously referred to as deportation, is the legal process of removing a non-United States citizen from the country and sending them back to their country of origin. Non-United States citizens may be subject to removal for a number of reasons, such as:
- Committing marriage or green card fraud;
- Being convicted of a criminal offense; or
- Violating immigration laws.
It is important to note that, in certain cases, the grounds for removal may be incorrect or improper. These issues will require the non-U.S. citizen to show that they have a legally valid reason to remain in the United States.
There are certain cases in which the non-U.S. citizen who is at risk of being removed from the country may qualify for an exception or for a waiver of removal. If a non-U.S. citizen is removed from the country, they may not be able to return for ten years or more, depending on the circumstances of the case.
Deportation cases can also have an impact on family law cases, if a member of a family is facing deportation or is deported. Family law is a body of law that deals with issues involving familial relationships.
Divorce, child custody, and child support are well-known subjects in family law, although several other issues also fall under the umbrella of family law. Other issues that may be heard in family court include:
How Does Deportation Impact Families?
Deportation may have a major impact on families because of the potential for separation of family members. A loss of a family member from a home may significantly disrupt a child’s life and have major impacts on their mental and emotional health which compromises their ability to learn and perform in school as well as possible long-term physical and mental health outcomes.
Deportation of a parent can cause emotional and psychological issues. Deportation may affect members of the family emotionally even before the deportation occurs, which may cause feelings of fear and anxiety of being forever separated both physically and emotionally from their loved ones.
If a children’s caregiver is deported, they become more at risk for:
- Food insecurity;
- Housing instability; and
- Economic hardship.
What Are Some Family Law Considerations in Deportation Cases?
There are numerous family law considerations that may arise in deportation cases, especially those in which a parent is deported, including:
- Child custody and visitation;
- Spousal support and alimony;
- Property division; and
- Immigration status of family members.
Child custody and visitation
In general, child custody includes the legal rights and responsibilities that parents have over the care, control, and upbringing of a child. Child visitation is the legal rights that are afforded to non-custodial parents.
A parent who does not have any type of physical custody over a child will typically be granted visitation rights. Visitation may be an issue if one of the child’s parents is deported from the country.
In family law cases where a child is involved, a court will make decisions concerning that child based on the child’s best interest standard. This is the standard that is used when child custody and visitation agreements are finalized and it typically takes precedence over the majority of child custody laws.
Child support and alimony
Alimony, also referred to as spousal support, represents financial payments that are made by one spouse to the other once a divorce has been finalized. This issue may arise in cases of deportation if one of the spouses decides to file for divorce.
Alimony may be awarded if there was a major difference in the earning power of the spouses, especially in a long-term marriage. The court will evaluate the requesting spouse’s financial needs and the paying spouse’s ability to pay support.
Alimony is not automatically provided and will not be awarded in all divorce cases. In some cases, the court may grant temporary spousal support while a divorce is still pending.
It is important to note that spousal support is different from child support, which is financial payments that are made specifically for children under the age of 18 of the marriage. Child support is intended to provide for daily needs, such as healthcare, education, and housing.
Property division
If a deportation case results in a divorce, property division will occur. Property division is the way in which the couple’s property and money are distributed during the process of getting a divorce.
When determining who will get which assets, the first consideration will be who owns the property. In addition, whether the couple lives in a state that divides marital property up by equitable distribution or community property laws, will affect the distribution of their property.
Equitable distribution is the method that is followed by the majority of states in the United States. It requires that the court examine numerous factors when deciding which party should get what property.
It is important to note that equitable distribution does not mean that the property is divided equally. Instead, the property decision will be based on overall fairness to the spouses.
There are only nine states that follow community property laws. In these states, the spouse’s property is considered to be owned half by each spouse. The property in a community property state will typically be split 50/50 between the spouses.
Immigration status of family members
Many legal immigration statuses are based on family relationships. This may be an issue if a family member is deported.
Individuals who often get green cards based on an immediate relative family relationship include:
- The spouse of a U.S. citizen or permanent resident;
- The child of a U.S. citizen;
- The parent of a U.S. citizen, if the U.S. citizen is 21 years of age or older; and
- The sibling of a U.S. citizen provided that the citizen is 21 years of age or older.
As noted above, there are certain situations in which individuals may be deported, such as a criminal conviction. For example, even green card holders, or lawful permanent residents, who are convicted of an aggravated felony, such as rape or murder, may face deportation proceedings.
Even if the individual has lived in the United States for many years, a conviction can lead to them being removed from the country, potentially resulting in family separation and loss of their established life in the U.S.
What Are the Legal Rights and Options for Families Who Are Facing Deportation?
There are steps families that are facing deportation can take, including consulting with a lawyer, who can advise them of all of their options. An immigration lawyer is an attorney who practices immigration law and will have a working knowledge of current U.S. immigration laws, which may change with each presidency.
Immigration lawyers help individuals who are experiencing difficulties related to adhering to immigration requirements. They also represent their clients during any deportation hearings.
An immigration attorney can help protect your rights as an immigrant, and can help you determine whether any legal defenses, waivers, or exceptions may apply. There are also forms of discretionary relief an individual may be able to use, such as:
- Voluntary departure, where the alien leaves of their own free will;
- Cancellation of removal, which is only granted to certain individuals who qualify by meeting all of the requirements for the relief;
- Adjustment of status, which occurs when an immigration court allows an individual to change their status from non-immigrant to that of lawful permanent resident; and
- Asylum, which is another relief from removal that is granted in limited circumstances where the individual would face severe political persecution if they returned to their country of origin.
If an individual cannot obtain discretionary relief from removal, they may be able to appeal a removal decision. Whether or not a removal order can be appealed will depend on the grounds on which the removal was ordered.
For example, if an individual’s removal was ordered because they committed a crime of which they have already been convicted, then appealing a removal decision will not be possible.
If an appeal is possible, an individual who has been ordered removed has to file an appeal with the U.S. Board of Immigration Appeals (BIS) within 30 days of the immigration court’s decision in their case.
If an individual is granted Family Unity benefits under the Legal Immigration Family Equity Act (LIFE Act), that was passed in December of 2000, an individual may be authorized to remain in the U.S. for two years or one year if their spouse or parent has a pending application for adjustment to lawful permanent resident status.
What Are Some Examples of How Deportation Can Affect a Family Law Case?
Deportation can have effects on family law cases, as it may change the parties who are available for courts to grant rights to. For example, if an individual is deported, it will likely be difficult for them to attend any regular visitations with their children.
In addition, the parent who remains in the United States will likely be awarded sole custody, as the other parent may not be available to exercise any custody rights. The division of property may also be impacted, depending on whether or not the deported party is permitted to take any property with them and how much.
In addition, if an individual is deported and cannot attend hearings and other meetings related to their case, it may affect issues in the family law case.
What Is Immigration Reform and How Does it Impact Family Law?
Many individuals argue that immigration reform would create numerous jobs, reduce the deficit, and keep millions of families from being separated. Immigration laws and policies are constantly undergoing revision and updating and each of these changes may impact family law cases, as they will change the applicable immigration laws.
Should I Consult with an Attorney?
If you or a member of your family is facing deportation, it is essential to consult with a family attorney as soon as possible. Your attorney will give you the best chance at staying in the country with your family.
Deportation can have enormous consequences, both physically and mentally on all members of your family, as you may face being banned from the country for many years. Because of this, it is essential to consult with an attorney who can advise you of any steps you can take to keep your family together.
