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This week, the internet was riveted by the story of the deportation of Jorge Garcia of Detroit, Michigan to Mexico.  Garcia had entered the U.S. illegally as a child, lived in the U.S. for thirty years, is married to a U.S. citizen and has two United States citizen children.  He has no criminal record.  On Monday, January 15, 2018, Martin Luther King Jr. day, Immigration & Customs Enforcement (ICE) agents escorted Mr. Garcia out of the U.S.  His tearful goodbye to his family horrified millions.  Yet, many wondered why Garcia “didn’t just become a citizen.”  I am going to try to explain what I think occurred here based upon the reports in the media.  I am not involved in this case and have never discussed his case with any of his lawyers.  I am also going to explain the obstacles he likely faced in seeking to regularize his status.  If anyone with personal knowledge of the case reaches out to let me know that I am wrong, I am happy to amend this article.  However, if you write me to tell me that this family deserved this, I reserve the right to think you are a terrible person.

What happened?

The media has reported that Garcia entered the U.S. illegally as a child thirty years ago.  That would have made him 10 years old at the time, around 1988.  There is little reporting as to what Garcia did between 1988 and 2009 when Garcia received a final removal order.  Obviously, he attended school, perhaps worked, and got married and had his children along the way.  His children are 15 and 12, so the first one was born in 2003 and the second in 2006.  Back to the removal order: I am presuming that this removal order was entered by the immigration court in Detroit.  This court is notorious for being one of the most immigrant-unfriendly jurisdictions in the country.  It is unclear how Garcia wound up in removal proceedings or what happened in those proceedings.  However, the removal order was final in 2009 at which point ICE was free to remove him.  ICE did not seek to remove him between 2009 and 2018.  ICE removed Mr. Garcia on January 15, 2018 to Mexico.

Why didn’t he become a citizen?

Put briefly, there was no legal way for him to do it.  First, as a preliminary matter, one does not “become a citizen.”  In order to seek citizenship– voting, U.S. passport, jury duty– a person must be a permanent resident or have a “green card.”  Any analysis of his ability to “get legal” must start with an inquiry into whether Mr. Garcia has an opportunity to seek permanent residence.  Since Mr. Garcia entered without inspection by crossing the border, he was barred from seeking residence in the U.S., except under certain exceptional circumstances.  The bar to seeking residence in the U.S., a process known as adjustment of status, meant that he could only seek residence at the U.S. Consulate in Ciudad Juarez, Mexico.  However, there is a catch-22 to that option.  Having been unlawfully present in the U.S. for more than one year since turning 18, had Mr. Garcia left the country, he would have been subject to a ten year bar to his return to the U.S.

He married a citizen, doesn’t that automatically give him a green card?

No.  Marriage to a U.S. citizen allows you to apply for a green card.  You must meet the eligibility requirements.  The bar to seeking residence in the U.S. if you entered unlawfully applies even if you are married to a U.S. citizen.  It applies even if you were a child when you entered.  There is a limited exception which might have allowed him to seek residence in the U.S., but that provision expired in 2001 and was never renewed by Congress.  While his wife could petition for him, he would have needed to leave the U.S. to seek an immigrant visa at the U.S. Consulate in Juarez, Mexico.  Departing the U.S. would have imposed a 10 year bar on his return, which means that the consulate could not issue him a visa, even with his wife’s sponsorship.

There has to be some way around that bar, right?

Yes, there is a waiver for the ten year bar.  An immigrant can seek to waive the ten year bar if he can demonstrate that his U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if he is denied a visa.  Note that this waiver does not take U.S. citizen children into account.  Until 2013, an immigrant had to seek that waiver abroad after being denied a visa in Juarez.  In other words, an applicant must go through the entire petition process, leave the U.S., apply for a visa, and get denied due to the ten year bar before he could seek the waiver.  It was not uncommon for processing times for those waivers to exceed one year.  So, if Mrs. Garcia petitioned for Mr. Garcia, he would have had to leave his wife and children and his job to apply for a visa in Juarez.  He would be denied and he could seek a waiver, which would have certainly meant at least a year outside of the U.S., if it was approved.  If it was not approved, he would face nine more years of separation.  It is no wonder that very few immigrants were willing to take this risk.  In order to persuade more people in Mr. Garcia’s situation to seek status through this process, the Obama administration changed the process for seeking waivers in 2013.  The administration allowed immigrants to seek that waiver in the U.S.  If that waiver was approved, they could go to the Consulate in their home country and seek a visa without taking the risk that the waiver would be denied.  That new process is known as the provisional waiver.

Why didn’t Mr. Garcia seek a provisional waiver?

The provisional waiver certainly could have been a help to Mr. Garcia.  However, the rules in 2013 prohibited people who had removal orders or were in removal proceedings from seeking a provisional waiver.  It was not until August 2016 that the rules were relaxed to allow individuals with removal orders to follow a process to get a provisional waiver.  While the reports contain no information whether this process was initiated by Mr. Garcia, it is certainly possible that the process is ongoing.

How did he wind up in removal proceedings?

That is not clear.  The most common ways that people wind up in removal proceedings are: (1) some type of contact with law enforcement; and (2) applying for benefit from immigration and being denied.  The reports indicate that Mr. Garcia has no criminal record. Despite that, many people wind up in ICE’s custody if they are pulled over for traffic offenses and can not prove their lawful immigration status.  It is possible that Mr. Gracia was pulled over for a traffic violation and was turned over to local law enforcement when he could not provide proof of his immigration status.  The other way that people wind up in removal proceedings is by applying for benefits that they don’t qualify for.  Perhaps believing that being married to a U.S. citizen entitled Mr. Garcia to residence, he and his wife could have filed a petition for him and an application for adjustment of status.  But, as discussed above, due to his unlawful entry into the U.S. when he was 10, he was not eligible to apply for adjustment of status.  The Citizenship & Immigration Service would have denied his case and placed him into removal proceedings, under such circumstances in 2006, when the removal proceedings were initiated.

Could he have done anything in immigration court?

Yes, he appears to have been qualified for cancellation of removal, a form of relief from deportation.  I have no idea whether he applied for it, but it would be a natural option for someone with a lengthy residence in the U.S., U.S. citizen family ties and no criminal record.  Cancellation of removal is available for an individual who; (1) has been here for ten years; (2) has good moral character; (3) and whose deportation would cause exceptional and extremely unusual hardship to a U.S. citizen or permanent resident spouse, parent or child. If Mr. Garcia made an application for cancellation of removal, I would speculate that he met the first two requirements but the judge found that he failed to demonstrate the very high level of hardship required to satisfy the standard.  The hardship standard for cancellation of removal is hard to meet in court and especially so in an immigrant-unfriendly court like Detroit.  I would guess that he made such an application.  Media reports state that the immigration judge entered a removal order in June 2006 and Mr. Garcia appealed to the Board of Immigration Appeals.  The order then became final in 2009 after the Board rejected his appeal.  The appeal suggests that Mr. Garcia filed an application for relief that was denied.

What about DACA?

DACA was instituted in 2012 and allowed individuals who were brought to the U.S. as children with the right to seek protection from removal.  In order to seek the protection of DACA, an immigrant could be no older than 31 on June 15, 2012.  Mr. Garcia was about 34 years old at the time.  There was an effort to expand DACA that would have helped Mr. Garcia, but that effort was stalled and abandoned after 26 states, led by Texas, filed suit to stop the Obama administration’s executive actions on immigration.

Why didn’t he get removed between 2009 and 2018?

As discussed above, once the order of removal was final, ICE was able to remove Mr. Garcia.  However, because ICE determined Mr. Garcia not to present any threat to public safety or national security, they likely did not take any immediate steps to secure his removal.  Media reports that ICE exercised its discretion in 2011 not to remove him at the time.  During this time, ICE was operating under a set of rules that admonished ICE officers to focus their removal efforts on those who were dangers to the community, recent entrants, national security risks, or serial abusers of the system.  These rules were based upon a recognition that ICE does not possess the resources to remove every single removable immigrant and should, therefore, focus its efforts on who present a danger or flagrant disregard for our laws.  The “priorities memos,” as they were known, directed ICE officers to prioritize dangerous individuals over individuals like Mr. Garcia.  Accordingly, repeatedly between 2011 and 2017, ICE exercised its discretion not to expend its removal resources on seeking Mr. Garcia’s removal.

Is this on Trump?

Yes. For the previous seven years, ICE exercised its discretion not to remove him.  ICE made a judgment that removing a guy who has been here for thirty years, has a tight U.S. citizen family, has no criminal record and had no complicity in the manner of his entry was not a good use of its resources.  When the Trump administration took over, ICE Director Thomas Homan stated that ICE would seek the removal of all removable immigrants.  The media is full of reports of the deportation of such people.  At the time the Obama administration ended, his administration was litigating a plan to provide individuals like Mr. Garcia with a protection similar to DACA. That effort was abandoned upon the change in administration.  I am confident that had Hillary Clinton won the election, her political leadership of ICE would have continued the policy to prioritize the removal of the dangerous over people like Mr. Garcia.