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What Happens to U.S. Immigrants without Documentation?

Q:  How many immigrants live in the United States?
A: 
The Department of Homeland Security estimates that there are 12.6 million legal permanent residents living in the United States. Of these, just over 8 million are eligible to naturalize into United States citizens. In addition to the immigrants who are lawful permanent residents, between 8.5 million and 15 million people are living in the United States without legal status (estimates vary depending on who performed the study). It is worth noting that many of these people came to the United States legally and, for a variety of reasons, often through no fault of their own, fell out of status.

Q: What are the consequences of entering the United States without going through inspection?
A:
It is unlawful to enter the United States without inspection by a border control agent. A person who does this has illegal status immediately. Many other remedies for people who have fallen out of status are not available to persons who have entered the United States without inspection. They will not be granted an extension of stay if they cannot get a green card, even if they have a visa petition or a labor certificate pending.

Q: What, exactly, does it mean to be deported?
A:
Once a deportation order is effective, the Department of Homeland Security is permitted by U.S. law to transport the immigrant (“deportee”) out of the U.S. and into another country. Immigrants who have been deported previously and re-enter the United States without inspection risk criminal prosecution and may lose any future immigration benefits for the rest of their lives.

Q: Can undocumented immigrants leave at their own expense?
A:
If the U.S. government has started a deportation case against an immigrant, that person may be allowed to leave voluntarily. To qualify for voluntary departure, the immigrant must have a valid passport and enough money to pay for travel home. Voluntary departure is not allowed for immigrants who have previously been deported or who were previously allowed to leave voluntarily, or who have been convicted of certain crimes. If a deportation case has started, and the immigrant leaves the U.S. without first receiving the immigration judge’s decision allowing voluntary departure, then a record of deportation will be issued and that immigrant will face the same penalties as other persons who are deported. If voluntary departure is allowed, and the immigrant complies with the time limit to leave, then no deportation order will be issued. Note:  If voluntary departure is allowed, that immigrant will be allowed to apply for a visa to the U.S. just as any other immigrant is allowed to apply for a visa. However, the time spent in the U.S. prior to deportation or removal proceedings may trigger a statutory bar from returning to the U.S. for three or ten years.

Q: Are there cases when immigrants without proper documentation may be allowed to stay in the U.S.?
A:
Yes. Some immigrants without documentation may have valid and legally acceptable reasons for living in the U.S. For example, those who have fled their native countries to escape persecution on account of their race, religion, national origin, political opinion or membership in a particular social group, may qualify for “asylum.” Persons who are granted asylum may live in the United States with their dependents indefinitely, but if they leave, they must apply for refugee travel documents. Applications for asylum (using Form I-539) are due, in English, within the immigrant’s first year in the United States, although some exceptions to this time limit are permitted. Anyone who makes a frivolous application for asylum risks losing any future immigration benefits for the rest of his or her life.

11/10/2011

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Richard Renner of the Dover, Ohio firm of Tate & Renner, and David Leopold of David Wolfe Leopold & Assoc. Co., LPA in Cleveland. It was updated by Lori A Pinjuh of Margaret W. Wong & Assoc. Co., LPA in Cleveland.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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