Mixed status immigrant families pay to stay

by Kahrin Deines

[This story appeared originally on For the People...around Chicago: Medill Reports on what's working and what's not, a project of Northwestern University's Medill School of Journalism]

Hector Mendez knows he will most likely be deported from the United States sometime during the next year.

He has lived in the U.S. for half of his 32 years. His mother, father, brothers and sisters also live in the U.S., in the Little Village neighborhood of Chicago and in west suburban Cicero. His wife, Elena, is here. So are his two daughters.

In October he will appear before an immigration judge. At that point, he will be given a date for a formal hearing.

He knows he may be forced to leave his family, and return to Mexico, a country that is no longer his home. But he is clinging to the idea that the immigration judge will see he is a good citizen, and find him worthy to stay.

"My good record can probably help me stay here. I think I’m a good citizen," Mendez said. "I always pay taxes. I’ve got a good driving record. Good credit."

As Mendez lists these things, his voice wavers. It is clear he wants to believe who he is and how he has lived will be important factors in his hearing.

He suspects they will not.

Like many other unauthorized immigrants in the U.S, the Mendez's family falls into a "mixed-status" category in the eyes of the law. As the term suggests, some family members qualify for all of the rights of citizenship and others qualify for no protection at all.

In the Mendez’s case, Hector and Elena are both undocumented, one of their daughters is undocumented, and the other is a U.S. citizen.

In 2005, according to the Pew Hispanic Center, there were approximately 2 million families like the Mendezes living in the U.S. These families had at least one unauthorized parent and one child who was a U.S. citizen. All of the children were U.S. citizens in 77 percent of the cases.

Very few pathways exist for the parents in these families to legalize their status, and those that do exist have requirements that most of these families cannot meet.

As the Homeland Security Department has stepped up its enforcement of immigration laws in the last few years, these children and their parents are increasingly at risk of separation.

Since they are separate in the eyes of the law, they must often endure being separate from each other, for short or long periods.

What are the chances?

Hector and Elena, whose names have been changed because of his pending immigration hearing, have been living in the U.S. since the early '90s. He came in 1993, and she in 1994.

The two met and married in 1997. Their first daughter was born in Chicago in 2000.

After her birth, they moved back to Mexico for a short period because they were worried about raising a family in the U.S. without legal status. But they could not find good employment and they returned that same year.

Since then, Hector has done interior remodeling work, and Elena has started working part-time now that their daughters, 5 and 7 years old, are in school. They have saved their money, and they had been considering buying a house in Cicero.

Those plans came to a halt in November 2007, when Hector was arrested by Immigration and Customs Enforcement (ICE) agents at his home. In a moment, the future fell out of their hands.

"It’s like we’re on a tightrope where you don’t know if you’re going to stay here or you have to go back," Elena said. "And it’s going to be very difficult to face the situation, and moreso when he leaves, because of the girls."

Hector’s situation is unusual because immigration authorities do not generally raid homes unless one of the residents is wanted on a criminal charge. In his case, immigration police arrested him because they thought he was someone else. This other person had been using Hector’s name, and is wanted on criminal charges.

The authorities quickly discovered Hector was not the person in question, but he was given a date to appear before an immigration judge in October. In the meantime, he was released.

As Hector and Elena navigate the legal process set in motion by his arrest, they must weigh their hopes against reality.

Although Hector does not have a criminal record, now that immigration authorities are aware of his presence, the chances that he will be able to remain in the U.S. are slim.

Current immigration law sets a high bar for people like Hector, who have been here for many years unauthorized, said Anne Relias, a Chicago immigration lawyer.

Unless he qualifies for some other kind of relief, Hector will need to apply for a "Non-Lawful Permanent Resident Cancellation of Removal." In order to qualify, he will have to demonstrate his removal would cause "exceptional or extremely unusual hardship" to his U.S.-citizen daughter. He will also have to establish that he has been in the U.S. continuously for at least 10 years, and that he has a clean record.

"It’s a difficult form of relief to obtain," Relias said, usually requiring something very unique, such as a medical condition or severe learning disability on the part of the U.S. citizen.

It is especially hard to justify, she said, if the U.S. citizen is young, because it’s difficult to argue they cannot easily adjust to a change. "It’s usually better when they’re older, but not too old," she said.

Their daughters, though young, are the main reason why Hector and Elena hope to be able to stay in this country.

For their sake, Elena said, she may try to remain even if Hector is deported. They both feel strongly they would have a much better life and education here, so much better they think it may even trump the importance of being with their father.

"It would be better for them to be here," Hector said. "It’s better to be together, but it would be more beneficial for them to be here."

As they prepare for the worst, they are struggling with how to explain to their daughters that he might have to leave. They are hoping to find a counselor who can help them through their church.

"It would hurt them a lot if we told them I have to be deported," Hector said.

The impact the deportation of a parent may have on children who are U.S. citizens lies outside the responsibilities of ICE, which is tasked to uphold the law, said Gail Montenegro, a spokeswoman for ICE, in an emailed statement.

"Quite simply, parenthood does not make anyone immune from having to comply with federal immigration laws," Montenegro said. "That is true for immigrant violators just as it is for any other law breaker."

Navigating the law

The Mendezes plan to hire a lawyer for his court appearance in October.

"We have to try. This is the only hope I have to stay here," Hector said, sitting in a room at his church, while his daughters played outside the door, peaking in from time to time.

He is afraid, though, of losing his savings to a legal battle when there may be no real hope. "It’s the reason why I have to get a very, very honest lawyer," Hector said. "If he tells me ‘yes, I can do something,’ then I’ll pay him, but if I’m deported, it’s better to save that money and take it back, take it with me to help us better. It’s the reason it’s really hard to find a good lawyer."

The complexity of U.S. immigration law makes it difficult for immigrants to know whether they should spend their money on a defense.

"You can’t even give a general example of someone who would qualify for relief because it’s such a complex set of laws. It’s like the tax code," says Tara Tidwell Cullen, a spokeswoman for the National Immigrant Justice Center, which offers legal defense for immigrants on a sliding scale.

Location adds another layer of uncertainty.

"It’s very hard to ballpark a guess," said Kathleen Walker, president of the American Immigration Lawyers Association. "You have to know the particular court in question, the judge, the caseload and the particular case."

The complexity, combined with the high costs of legal advice, breeds confusion, which can put members of "mixed-status" families at greater risk of deportation.

"People should know they need to get a good attorney, expect the worst, try to be prepared and save money," said Jenny Echegaray.

Last fall Jenny’s husband, Milton, spent nearly two months in detention. He was held in the Tri-County Detention Center in Ullin, Ill., as well as in facilities in Texas and Kentucky.

Homeland Security currently contracts with more than 350 local and state facilities to hold unauthorized immigrants facing deportation, as well as asylum seekers. Illinois is home to two such facilities: the Tri-County Detention Center and McHenry Correctional Facility in Woodstock.

Milton was arrested at the Echegarays' home in Indianapolis early on the morning of Oct. 26, 2007. Immigration and Customs Enforcement officers were acting on a deportation order issued in his name.

"It all happened in half an hour. You know I didn’t know what to do," said Jenny, who came to the U.S. in 1989 from Guatemala. "I just kind of stood in my stairs like frozen. Just before I was sleeping in my bed and now Milton was gone. I was in a state of shock."

Luckily, Jenny said, their two daughters, both U.S. citizens, stayed in their bedroom during the arrest. "Thank God they decided to do that because it would have stayed in my mind for the rest of my life [if they had watched]," Jenny said.

Ironically, the Echegarays were expecting that Jenny would soon receive a green card, and then planned to apply for legal residency for Milton as her husband.

Jenny thought she had filed the proper paperwork to apply for legal residency through the Nicaraguan Adjustment and Central American Relief Act (NACARA), which was signed into law in 1997.

Milton, who has been in the U.S. since 1990, had been requesting stays on his deportation through the local U.S. Citizenship and Immigration Services office for many years, pending Jenny’s NACARA award. Relias, their lawyer, said such stays used to be granted for people in their situation.

"The problem was that they were using ‘notarios’ – bad lawyers or non-lawyers to assist them," Relias said, who helped get Milton out of detention. "A lot of immigrants do use someone who’s a notary because in their home country notaries may have a different status or distinction."

Because of this mistake, the Echegarays spent approximately $20,000 in legal fees while fighting for Milton’s release, on top of the several thousand dollars they gave to notaries in earlier years.

Money, though, was the last thing on her mind when Milton was in detention, Jenny said. The emotional costs, she said, were far greater.

"I went through lots of down moments where there was no exit," Jenny said. "Two months of uncertainty, two months of situations that become complicated one way or another. It’s like pain, sadness, anger and depression all at once."

Milton, meanwhile, began to lose hope.

"He called me one day and said ‘Please, Jenny, don’t do anything more. It’s over.’ And I said, 'What do you mean?' He said, ‘You’re going to need a lot of money and nothing’s going to happen,’" she said.

Marilu Gonzalez, who counsels families dealing with a detention for the Chicago Archdiocese, said it’s not unusual for people to lose hope while they are in a detention center, even if they may have a right to stay in the U.S.

"The goal of Homeland Security is to deport," Gonzalez said. "Once they are in a detention center, [the department’s] goal is to wear the person down until they can deport [them]."

For the Echegarays, Milton’s deportation would have meant selling their home, leaving their parents, who are legal residents in the U.S., and moving their daughters to Peru, where Milton is from.

"They knew what was going on, but they didn’t want to talk about it too much," Jenny said of their daughters, Katie, 14, and Amanda, 10.

Since they had the money to wage a legal defense, the Echegarays were able to fight Milton’s deportation, and he was released from detention before Christmas 2007. Jenny has also received her green card, after re-filing for relief through NACARA with the help of their new lawyer.

Barriers to the unauthorized

An immigration judge will hear Milton’s case in October, and the Echegarays feel confident he will be allowed to remain in the U.S. as a legal resident.

Milton still has to prove his removal would cause "extreme hardship" to his U.S.-citizen daughters, Relias said. Since they are older and he makes a good living as a car salesman, though, they have a strong case, she said.

Along with employment, family unification is the most common case made for legal residency in the U.S. In 2007, for example, 47 percent of the immigrants granted legal permanent residency were immediate relatives of U.S. citizens, according to the Homeland Security Department.

U.S. citizens under the age of 21 cannot sponsor their parents, though. Only spouses, parents and adult children can serve as sponsors.

When a U.S. citizen is married to someone who has lived in the U.S. unauthorized for many years, however, the law ceases to prioritize family unification.

Grisel and Juan Sanchez found this out in March 2006, when Juan’s petition for a green card was denied.

Grisel, 31, is a U.S. citizen by birth. In July 2003, she married Juan, who had lived in the U.S. unauthorized for ten years. Their son, Emanuel, was born in Chicago in June 2004.

When Emanuel was 20 months old, Juan left to apply for legal residency with Grisel as his sponsor at the American consulate in Ciudad Juarez in Mexico. Since he had lived in the U.S. unauthorized, his application was denied.

U.S. immigration law sets a 10-year bar against reentry for anyone who has lived in the country unauthorized for more than a year, said Walker, president of the American Immigration Lawyers Association.

In order for an "unlawful presence" bar to be waived, she said, the applicant must prove their absence would create "extreme hardship" for their U.S. citizen spouse.

It’s a hard standard to meet, Walker said, because "separation alone doesn’t cut it."

After Juan’s application was denied, Grisel tried to find legal help in Chicago, but had no luck. "Everybody just says the same thing: ‘You have to wait,’" she said.

It wasn’t long before she realized she couldn’t wait 10 years.

"By the time [Emanuel] was two in June, his dad would call and he refused to talk to him," Grisel said. "He would ask ‘when are you coming home?’ and when [his dad] said he couldn’t, he would say ‘well, I don’t walk to talk to you, daddy.’"

It only got worse.

"As he started growing, he would just wake up at night at weird times – at two and three in the morning – and he would be crying out for his daddy," Grisel said. "That did it for me. I was just like ‘forget it, I have to do something.’"

In June 2007, Grisel and Emanuel moved to Del Rio, Tex., which is about 20 minutes from the U.S.-Mexico border. Juan now lives on the other side in Acuña, and every weekend Grisel and Emanuel cross over the border to see him.

Young children, especially, struggle to understand why a parent can no longer be with them, said Rosa Maria Castañeda, an analyst at the Urban Institute, an organization that researches public policy issues. Along with other researchers, CastaÒeda recently completed a study on the impact immigration raids have on families.

"There’s that big question: What does this mean in terms of identity? What does this mean in terms of children’s [sense of] belonging in the country? And, remember, most of these children are U.S. citizens," Castañeda said. "Especially the younger children. They don’t understand the concept of having papers or not having papers. They just know that [their parents are] not around."

While it has gotten better since the move, Grisel said, Emanuel still does not understand why his father cannot be with them during the week. "It’s hard to explain to him that daddy didn’t want to do this, that he just had to," Grisel said.

Opponents of amnesty for unauthorized immigrants point out that the immigants are responsible for any hardships faced by their families.

"I think we all sympathize and empathize with the position that these young kids find themselves in, but the ultimate responsibility is with the people who decided to break the law," said Ira Mehlman, a spokesman for the Federation for American Immigration Reform. The federation supports immigration policy reform that would tighten border security and halt unauthorized immigration into the U.S.

It should be no different than it is for the children of Americans who commit crimes, Mehlman said, who also end up paying for their parents’ poor choices.

"The basic point is that the responsibility rests with the people who violated the law just as it would for the rest of us," he said.

The future

The law, though, is not static, and in the past, people who have violated U.S. immigration laws have sometimes been given legal status.

Grisel’s parents, for example, are originally from Mexico, but they now live in Cicero as legal residents of the U.S. Although they came here unauthorized, they were able to apply for green cards under the Immigration Reform and Control Act of 1986. The act gave amnesty to unauthorized immigrants who had resided in the U.S. continuously since Jan. 1, 1982.

They were very unhappy when their daughter moved to Texas, with their new grandson.

"My parents were so mad that I had to make this move," Grisel said. "They were like we came to the U.S. so you could have a better future. They really felt like it was going backward for me to move here."

No amnesty currently exists for unauthorized immigrants who have lived in the country since the early ‘90s, unless they qualify for something unique like NACARA.

Although the U.S. Senate passed a measure in 2006 that would have provided a path to legalization for some unauthorized immigrants, the bill stalled in the U.S. House of Representatives.

As they are confronted by the repercussions of their choice to raise a family in the U.S., Hector and Elena, meanwhile, still cannot imagine doing something different.

"Like all of us who come here say, ‘we simply want to work for a better life,’" Elena said. "And one comes searching for well-being and to live a quiet life, simply to live, not in luxury, to have enough to give our children a better education – they who are the future of every country, of every nation. We don’t want our children to go through what we went through."

For Hector it is even simpler: "If we had the opportunity to stay here, a thousand times we’d choose to stay here."

June 2008