Concerns about potential deportation are high throughout the country. These concerns are fueled not only by media outlets showing story after story of United States Immigration and Customs Enforcement (ICE) agents taking immigrants into custody but also by data which shows that the number of removals is on the rise. In 2021, ICE reported just over 50,000 removals. In 2024, this number skyrocketed to over 250,000.
Concerns about deportation are valid, and immigrants are wise to ask about legal remedies to help protect their ability to remain in the country. One common question involves children. If an immigrant has a child who is a United States citizen, can they remain within the country regardless of their own immigration status? The answer will depend on the details of the situation. The following will dive into this question and provide some guidance to help you understand the factors that often guide these decisions.
Does having a U.S. citizen child provide automatic protection?
Unfortunately, any amount of protection that a parent may have through a United States citizen child is not automatic. However, when a U.S. citizen child turns 21 they can petition for their parents to receive a green card. It is important to note that even at this point, prior unlawful presence is a hurdle to approval. One tool that can help to get past this hurdle is Form I-601, Application for Waiver of Grounds of Inadmissibility. If approved, this can essentially provide forgiveness for remaining in the country unlawfully while the children were young.
Another tool commonly used in the past to help parents remain in the country was reliance on prosecutorial discretion. This refers to the reality that ICE cannot deport everyone, so they focus their efforts on deporting criminals. Using prosecutorial discretion, ICE may choose to temporarily refrain from deporting parents with citizen children. Unfortunately, even during President Donald Trump’s first administration ICE shifted its focus to broaden enforcement efforts and all undocumented immigrants, even those living in the United States for years with citizen children, have become targets. Although it is important to consider use of this tool it is not as reliable as it once was.
How can parents fight back if facing deportation?
The best approach will depend on the details of your case. Factors that will impact the strategy include whether you entered the country legally or not, the age of the child or children, the presence of any criminal history and connections to the country.
In some situations, hardship waivers can provide relief. This option focuses on the impact of separation. In many waiver-based cases, the qualifying relative is a U.S. citizen or lawful permanent resident spouse or parent. U.S. citizen children can provide supporting evidence though they generally cannot serve as a qualifying relative. Evidence that can help build the case for hardship can include:
- Medical: diagnoses, treatment plans, clinician letters, insurance limits
- Financial: tax returns, pay stubs, debts, childcare costs, housing records
- Emotional, educational: therapy notes, school plans, special education documents, country conditions reports
A strong request connects this documentation to specific harm. Use the above as a checklist but include a narrative to explain the true impact of threatened deportation. Additional legal remedies that may apply can include a Violence Against Women Act (VAWA) petition which can lead to lawful permanent resident status as well as family unity based remedies such as the 237(a)(1)(H) Waiver.
What steps should I take if I am in this situation?
Take the time to gather and organize documents like children’s birth certificates, proof of your identity, court notices, prior immigration records, affidavits from caregivers, medical providers, employers and any other documentation you think may be helpful. It is important to seek legal counsel with experience in this area of law as filing the wrong forms can lead to denial and cause further strain to the family.
Although U.S. citizen children do not create automatic deportation protection their presence can serve as a part of a deportation defense case to remain in the country. Options can include prosecutorial discretion plus hardship-focused relief where eligibility exists, supported by detailed evidence tied to qualifying relatives and extreme hardship. A case assessment based on your exact immigration history is the first practical step.