Fri | Nov 24, 2017

Immigration Corner | What happens when you enter the US illegally?

Published:Tuesday | October 24, 2017 | 12:00 AM

The most common way that people enter the United States (us) illegally is to walk across the US border with Mexico. This accounts for more than Mexicans, as persons from all over the world pay smugglers to take them across the border into America.

To a lesser extent, persons also cross the Canadian border with the US. Some persons also enter the States illegally by boat and landing at a non-US check point. Cubans and Haitians have been shown to enter this way, but other Caribbean people have also entered the US in this manner.

Years ago, before machine-readable passports and when photos could be changed in Jamaican passports with US visas, several Jamaicans entered the US on 'photo-switched' passports. That is, they entered the States in someone else's name, with someone else's visa and their photograph. Some even came into the US on US birth certificates, posing as US citizens, when US citizens could travel without passports.

Those classes of persons are deemed to have entered without inspection or 'EWI', and for the most part, are unable to change their status to legal residents. Prior to April 30, 2001, if you entered the States EWI, you would pay a fine and be able to change your status if you were otherwise eligible. After April 30, 2001, the section of the Immigration & Naturalisation Act (Section 245i) that permitted this was eliminated.

In order for those persons who entered EWI to obtain US residency, if they have a qualifying relative, they must leave the US, return to their home country to be interviewed at the US embassy/consulates. However, once they leave they trigger a three- or 10-year bar to returning to the US that can only be overcome if they qualify for a waiver. In 2012, the Obama administration instituted the provisional waiver that allows persons who only have unlawful presence to be able to obtain their waiver while in the US and then leave for their interviews outside the US with their waivers already approved.

Those persons who entered illegally, posing as US citizens, are in the most difficult of situations. There is no waiver for false claim to US citizenship, even if you are married to an American citizen. The only defence to a false claim charge is that you believed that you were a US citizen when you so claimed.

 

SEVERAL RESTRICTIONS

 

Of course, being in the US illegally poses several restrictions and will depend on when the person entered. Years ago, persons where able to obtain driver's licences and social security numbers - these items are critical to survival. Now, you must prove legal status or pending status in order to obtain a driver's licence, and social security cards are stamped that they are valid for work with immigration approval.

During the Obama administration, undocumented persons found in the US were not a priority for removal especially if they had a US family and were not criminal aliens. Under the Trump administration, everyone is held in the same category - whether they are simply undocumented (overstays or EWI) or are criminal aliens.

The Department of Justice, headed by Attorney General Jefferson Beauregard Sessions, prosecutes deportation cases in Immigration Court. The attorney general has taken the position that there is to be no discretion in the assessment of cases - the law is to be followed in all circumstances.

The biggest problem for those who entered illegally to gain lawful status is how they entered the US, and whether they have an immediate relative to petition for them in order to qualify for a provisional waiver.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida. info@walker

huntington.com