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My Mother Was Previously Deported. Can She Still Win A Green Card?

Question:

“I filed papers to immigrate my mother. I became a U.S. citizen about ten years ago. At the permanent residency interview, the green card application was denied. The USCIS officer said my mother was ordered deported four years ago when she lived in Escondido. But she began living with me about five years ago when her marriage to a U.S. citizen failed. We never knew about the hearing. We were shocked. What can we do?“

(Submitted by Yvonne Z., Moreno Valley, CA)

Answer:

This is a tough question to answer because there are certain facts missing from your question. I cannot tell why or how she was deported. For instance, she may have been deported because she was not a legal resident. Maybe it was because she entered the country without valid permission.

I do not who was responsible for the deportation order. It may have issued by a judge or an agency officer. When she was deported could also raise significant concerns.

These are important questions. The answers dictate what, if any, corrective actions your mother should take at this time.

However, you have given me some clues. I’ll use them to discuss one likely possibility. This much is clear: do not delay taking actions to protect your mother. Since a deportation order exists against her, she could be taken into custody and not allowed to present any defense to removal.

On the surface, it appears your mother may qualify to reopen her deportation decision.

Based on what you shared, it sounds like your mother was deported by an immigration judge. She may have been deported on an “in absentia” basis. This means she was deported because she did not show up at her immigration court hearing.

If your mother was deported by a judge based for some other reason, she may still be able to reopen her hearing but it will probably be more difficult.

To figure out if my hunch that your mother was deported in absentia is right, you should start by contacting the immigration court in San Diego. (Most deportation cases for Escondido residents are sent to San Diego.) If the case was not in San Diego, but the deportation order was a court decision, the clerk at the immigration court can usually guide you to the correct court location.)

But even if your mother’s case was in San Diego, the clerk can only give you limited information. To find out when and why she was deported, you will need to obtain a copy of your mother’s immigration court file. I do not suggest doing this on your own.

I recommend contacting a deportation lawyer to help you not simply to obtain the file, but also to go to the court and review the actual file. The attorney should go through the court’s file and listen to any recorded transcripts of your mother’s hearings. By doing so, your lawyer should be able to determine if your mother has a chance to reopen her case.

At that point, you, your mother, and your lawyer will have to decide how best to go forward. If you file a motion to reopen your mother’s case, and the judge grants the motion, you might be allowed to file a new green card application on your mother’s behalf.

(Yet, remember the unknown facts are critical. For instance, you still need to know why was she facing deportation. This could affect what relief from deportation she can seek at use.)

You may also want to order your mother’s immigration file under a Freedom Of Information Act (FOIA) request. This will take longer than just going to the immigration court. The biggest advantage of this approach is that you will get copies of more than just the court records. Most likely, the papers you filed for her will be included.

On the other hand, if your mother’s deportation order stems from a non-court decision, then seeking her records under a FOIA request is absolutely necessary.

Overall, the key is not to despair or to do nothing.

In addition, as I noted above, I think these types of cases are too complicated for immigrants to handle on their own without the assistance of an immigration lawyer – especially when your mother’s dreams to live with you in the United States are at stake.

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By Carlos A. Batara

(Filed Under Q&As: Deportation And Removal Defense)