Home > Motion to Reopen in a Deportation Case Gives a Mother a Second Chance

Motion to Reopen in a Deportation Case Gives a Mother a Second Chance

In November of 2005, Elsa was only 15 years old when she found herself pregnant and alone.  The man responsible for her pregnancy had left her and she was facing a life of continuing insecurity and poverty for both her and her child.  A family member sacrificed money they had saved to travel to the U.S. and gave it to her instead.   Elsa was barely 16, when she decided to use this money to cross the border into the U.S. The traffickers had instructed her to lie about her age and tell any authorities that caught her that she was 18 or her child would be born in jail and taken away from her.  Trafficking children is a serious offense and since traffickers often have someone traveling with the group who would be at risk of getting caught, it is important that everyone is at least 18 years old.  Clearly, the traffickers wanted her to lie about her age, for their safety and not for her or her future child.

Elsa did not know what to expect when she entered the U.S., only that everything here was better and that it would be easy, but easy was not.  Within hours of crossing the border, she was arrested by immigration.  Because she was clearly pregnant, the authorities decided she could be released if she had somewhere to go.  She had a paper in her hand with the name and telephone number of a woman from her hometown.  Elsa showed it to the immigration officers, who called the woman and the next thing Elsa knew was that she was on a bus to Boston.  The one piece of paper she had carried from El Salvador was exchanged for many papers about a deportation process she was in, but did not understand.

One of the papers had an address for a court in Texas and a date in 2 months.  Over the next two months, Elsa’s life changed in so many ways.  She gave birth to a beautiful baby girl, she had found a part time job and had support from people in her community to mind her child while she worked to support them.  But that piece of paper with a date and address in Texas was looming.  She had no transportation, and she was only a child who was now raising a child and with barely enough money to survive, so the date on the paper passed and Elsa remained in Boston.

Elsa was driven to provide her child with a life and opportunities that she did not have.  She learned English and worked in a restaurant that gave her days free to raise her daughter.

Elsa’s life continued to move quickly.  Her child was growing, she was advancing in her job, and she even found herself in a stable relationship, but she had no legal status.  Eventually she wanted to address her issue with immigration.  She needed a social security number and a work permit to obtain health insurance, a driver’s license or an I.D.  However, everywhere she went she was told there was nothing she could do because she had an order of removal/deportation.

She had to put aside her hopes of legal status, of having health insurance through her employer, and even of having an ID or a bank account.

After many years of managing on her own, Elsa met Sam, a U.S. citizen.  Sam was single, her age and bilingual.  They started dating almost immediately.  Sam had several unsuccessful relationships in the past and he suffered from a serious medical condition, but in Elsa he found compassion, support and a friend.

In 2014, Elsa and Sam got married and they had a child.  It was at this point they decided to try to legalize her status, and this time she was referred to immigration Attorney Desmond FitzGerald at FitzGerald Law Company.

There was a new regulation that would allow a person who entered the US without permission to get residency through an immigration pardon for unlawful presence, I-601A waiver, which could be processed while the person was here in the U.S.   The rule even allowed a person to get an order of removal waived with a I-212 petition.  However, attorney FitzGerald identified that there was a problem for Elsa, as her order of removal was “in absentia” and that meant she had a mandatory 5 year penalty of staying outside the U.S. and there was no exception or waiver of this penalty.  Elsa had to get her deportation/removal order vacated.

Attorney FitzGerald knew that there were only a few exceptions in the law that allowed an immigration court to remove a deportation order in-absentia, but one was for extraordinary circumstances due to a serious medical condition.

Attorney FitzGerald believed that Elsa’s age and advanced pregnancy could qualify as an “extraordinary circumstance” under the law, and provide a basis to vacate her order of removal so the team at FitzGerald Law Company prepared a motion for the Immigration Court with an affidavit and medical records.  They also included a copy of the family immigration petition (I-130) that Elsa’s husband filed with USCIS to show the Court that if her case was reopened, she had a path to lawful status.  Afte the motion was filed, all Elsa and her family could do was wait for a response.  They were anxious yet hopeful.

After 5 long months of waiting the response arrived and the court ruled in her favor, her deportation was cancelled, and she would be allowed to seek lawful status in the U.S. with her family.

Elsa’s story is not over.  She will have to have her husband’s I-130 approved, then we’ll ask the court to administratively close her case, so she can obtain an I-601 waiver from USCIS.  But in the meantime, she has been able to obtain a work permit, a social security number and for the first time in years, peace of mind.