Groups » Understanding the Legal Rights of Children Born to Illegal Residents in the USA

The status and rights of individuals living illegally in the United States is an actionable, often heated discussion as the government determines the best course of action for the more than one million children under the age of 18 and 4.4 million young adults under the age of thirty. They are children who are growing up with “mixed status” in what is evolving into a very complex legal situation, as the United States aggressively addresses the problem with illegal immigration.

How many families are impacted by the new “mixed status” where one or more parents are undocumented and unauthorized residents of the United States? Reports from Pew Research in 2012 suggest that more than nine million families nationwide are coping with the uncertainty of illegal residency in the USA.

Understanding the Law for Immigrant Children

While the public views the 14th Amendment of the Constitution of the United States as providing rights for children who are born in the US to parents who are illegal immigrants, it is actually Section 301 of the Immigration and Nationality Act 8 U.S.C. § 1401 that defines what a child is entitled to in terms of status.

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person.

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

The act provides for the legal rights for children to be recognized as American citizens by birth if they are born within the United States, regardless of the legal residency status of one or both parents.

Deterring a Known Loophole

With more than 480,000 legal green cards issued in the United States every year, it is difficult for the majority of legal professionals and governance to condone illegal immigration. Clearly there are ample opportunities to approach citizenship through normal channels, and the American Immigration system provides lenient opportunities for families to unite with other family members through sponsored residency applications. The intention of the legislation and the United States Citizenship and Immigration Services (USCIS) is to provide compassionate channels to reunite families.

However there are a number of reasons why individuals avoid the legal channels when it comes to immigrating to the United States. In some cases, there may be a prior criminal record in their native country that may reduce the likelihood of a visa or green card approval (which requires a criminal background check). In other situations, a family member may have extended their stay on a visa without receiving permission to remain in the country. Once an individual has been ordered for deportation, it is exceedingly difficult to get approved for a visa (for work, student or even travel) let alone qualify for amnesty and landed residence consideration.

For some families who have entered and remained within the United States illegally, some opt to marry (or acquire common law status) with an American citizen and have children in the hopes that by establishing family in the country, they may plead their case on compassionate grounds.

What few immigrants realize is that the rights of the child are provided for by law, and while a child born in the United States may enjoy all the privileges of native citizenship, the unauthorized parent does not. Deportation of illegal residents is becoming more frequent with 438, 421 individuals ordered out of the United States in 2013 alone. Of that number, 240,000 were non-criminal illegal immigrants, asserting that criminal history or not, illegal immigrants are more frequently deported now than in previous years. The total number of deportation in 2001 was 189,000.

Having a child in the United States does nothing to guarantee anyone’s right to remain in the country as an unauthorized resident. And while we may cringe at the idea of someone starting a family in order to remain in the country, social data demonstrates it is quite common with many illegal immigrants having two or more children in the hopes of solidifying their residency claim. Read more about the trend on “The Myth of the Anchor Baby” via Forbes Magazine.

A Law that Separates Families Indiscriminately?

Immigration and Customs Enforcement (ICE) was responsible for separating thousands of families in 2013 and 2014, dispelling the myth that having one or more children in the USA guarantees exception on the grounds of compassion. In 2012 there were almost 205, 000 illegal immigrant parents of American born children deported.

It is important to note that while statistical data indicates many of the deported illegal immigrants had a criminal record, the record can include misdemeanor charges in their native country or in the United States. For instance, a crime such as “leaving the scene of an accident” could result in a misdemeanor charge in the United States, warranting removal of the illegal immigrant on the grounds of “criminal charges”. This skews the results and makes it difficult to distinguish between organized and violent crime offenders and drug traffickers, and non-violent misdemeanor charges.

The Growing Importance of the Immigration Attorney

The American Immigration Lawyers Association (AILA) reports that there are more than 13,000 registered immigration lawyers in the United States. For families facing deportation or navigating the changing complexities of immigration law and proposed amendments, an immigration attorney is an essential advocate for families who wish to remain together. You will do well to hire an attorney who is well versed with the immigration laws that apply in your state. Hence, if you live in Chicago, for instance, you should look for an immigration attorney in Chicago and hire one based on your requirements.

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