Estella got some really bad advice
Estella went to a Spanish-speaking attorney in Newark to learn how she could achieve U.S. legal status. This attorney chose for her, without really much explanation, an expensive and complicated process that she does not qualify for.
- She files Asylum application because she fears persecution from the government or a group the government can’t or won’t’ control, and the fear is due to one of five protected reasons. The asylum petition gets withdrawn and Estella gets placed in removal proceedings.
- Once in removal proceedings (deportation), Estella can apply for cancellation of removal as a non-permanent resident. Estella’s must show four things, but the most important is extreme and unusual hardship to a qualifying family relative who’s a citizen or lawful permanent resident if she is deported.
Estella has three minor US citizen children and lawful permanent resident husband, but none of them have anything that would be considered extreme and unusual hardship. This is a long process that lasts four to five years. Under today’s law, she will be deported. The fact that she gets employment authorization before the deportation is a small consolation.
This attorney never explained this to her, did not evaluate the options, did not do a risk assessment. Rather, the attorney simply said selected the most expensive process and said this is what we’re going to do; this is what you’re going to pay so trust me, let’s get started. She did.
Estella had a better alternative
Estella has a less expensive option with a higher likelihood of a success. She is married to a lawful permanent resident.
- Her husband can apply for his citizenship (form N-400).
- Her husband will apply for Estella to get her Green Card (form I-130). In New Jersey proving that relationship typically takes between 7 to 12 months.
- Then Estella will look to change her status. Because Estella did not enter the United States legally, and does not qualify for the LIFE act, known as 245i, she cannot change her status within the United States. That means that Estella, according to current procedures, will need to file a Provisional Unlawful Presence Waiver (form I-601A) in the US. That waiver is to forgive only the fact that she entered the US without permission, and will forgive nothing else.
- Once the waiver is approved she leaves the United States through the consular process to go present herself at the US Embassy in her country to get interviewed by a consular officer who’s looking to see is there a reason why she would be inadmissible in the United States.
- The officer concludes that she is not inadmissible meaning she is admissible to the United States, he or she stamps her passport and she comes to the United States. Then several weeks after entering the United States she will receive her Green Card.
What did Estella chose when she understood the options?
When we explained to her the two options, she unequivocally chose to file a waiver. She said she never knew there was another option. What this Newark immigration attorney did will force us to file to a motion to terminate her removal proceedings after the form I-130 petition is granted. Only after the proceedings are closed, will we be able to file for the waiver. You see the standard for the waiver, is lower than the extreme and unusual hardship that Cancellation of Removal requires, so her chance of success is much higher. That isn’t always the case, but here it wasn’t even close.
When would Cancellation of Removal be a better option?
The only circumstances where I recommend that you voluntary place yourself in removal proceedings, is if one or more of your U.S. citizen children under 15 (best if 10 or younger) have a severe medical condition or learning disability. For example autism, pediatric cancer, multiple sclerosis, or any kind of ongoing health-related issue that is or can be debilitating and that without that medical treatment the child could potentially die. The argument is if you as the parent is deported, your US citizen child (who has treatment in the U.S.) goes back to your home country he or she likely will not get the same level of care and will suffer or could die. That is clear, objective, and documentable extreme and unusual hardship.
Estella does not have that today, and did not have that a year ago. Her kids thankfully are healthy, bright, normal kids. There was no reason to put her down this path.
If you have an immigration challenge you need an attorney that will educate you and inform you of your options, an attorney who will analyze all of your options and explain it to you in a way that you understand. Estella did not have that, she was told this is what she needed to do, and this is what she needed to pay, and told don’t worry, we’ll take care of it.
At the end of the day it’s your life and for that reason it’s your decision. Make the right one.