For many years, attorneys who represent Mexicans in the United States facing deportation have heard the stories from clients and their family members. Someone accepted removal from the country voluntarily based upon advice received from Immigration agents that there was no possibility to obtain relief from removal from a judge. To another, they said that he could fight his case, but he would have to do it from a detention center without the possibility of release on bond, and it could take six months, a year, or more to complete the case. Clients almost never report that they received warnings about the effect of a voluntary removal to Mexico.
Unfortunately, the Immigration agents are not attorneys accredited to provide legal advice, and frequently their advice is wrong. Worse, in many cases, the effect of the voluntary removal is the prejudice or complete loss of options that would have been available to the foreigner if he had fought his case before a judge. Typically it is the loss of an immigration benefit that is only available from a judge, or a punishment of ten years of ineligibility for a return visa–a punishment that was not applicable before leaving the country. Many times, the foreigner believed, based on what had been said to him by Immigration officials, that he would be able to begin the process of obtaining an immigrant visa immediately upon returning to Mexico. Usually, he learns only upon contacting an attorney to begin the process of legal immigration that he cannot. But, then, it is already too late.
At last, it appears that this unjust process will end and that Mexicans who were victims of these practices in the past will be able to get reparation. Under a proposed agreement to resolve a law suit in the federal court filed by some Mexicans affected by these practices (in the case Lopez-Venegas v. Napolitano), Immigration would be required to allow the return of certain Mexicans prejudiced with regard to potential immigration by accepting voluntary removal. To clarify, the expelled person must be in Mexico after having accepted a voluntary removal from Immigration agents in southern California, and would have to present proof that, at the time of the voluntary removal:
- S/he was the spouse of a U.S. citizen, was the father or mother of a child who was already 21 years of age and a U.S. citizen, or was the child under 21 years of age of a U.S. citizen; and was eligible to apply for legal permanent residency through the process called ‘adjustment of status’ based upon a prior entry made through the normal inspection process at the border, port, or airport; or
- S/he was the beneficiary of an immigrant visa petition made by a family member and already filed and pending or approved; or
- S/he had completed 10 years living continuously inside the United States, was a person of good moral character, had not been convicted for certain crimes, and was the child of a U.S. citizen or lawful permanent resident, spouse of a U.S. citizen or lawful permanent resident, or father or mother of a child (under 21 years of age) who was a U.S. citizen or lawful permanent resident; or
- If s/he accepted voluntary removal on June 15, 2012 or after, s/he was eligible for DACA (‘Deferred Action for Childhood Arrivals’) benefits, based on the following requirements:
- S/he arrived in the United States when younger than 16 years of age;
- S/he was less than 31 years of age on June 15, 2012;
- S/he had resided inside the United States since June 15, 2007, to the present;
- S/he was present inside the United States on June 15, 2012;
- S/he did not have legal permission to be in the United States on June 15, 2012;
- S/he is now a student, has completed high school or an equivalency exam, or has completed service in the U.S. armed forces honorably; and
- S/he has not been convicted of certain crimes and in no other way presents a threat to the security of the country or the public.
The benefit of the agreement will be a provisional permit to enter the United States, and consideration under law as if there had been no departure under voluntary removal. That is to say that qualified persons should be eligible for the same benefits that had been available to them before they accepted the removal. The government will have the right to start removal proceedings against the returned person, but, at least, he or she will have the opportunity to apply for the benefits previously lost upon accepting the voluntary removal.
There will be a 180-day period, during which all who qualify will have to submit applications. That period will begin 120 days after the date of the final order of the court in the case against Immigration. The applications need to be filed electronically through a designated agency. However, the agreement with the government recognizes that an applicant can avail himself of the services of a private attorney to prepare the information and documents necessary to complete the application and, probably, that would be advisable for the majority of potential beneficiaries, because they will have only one opportunity to prove that they were eligible for the specified benefits when they accepted voluntary removal.
We expect final action by the court in February of 2015. If you may qualify for the benefit of this agreement, listen to the news, consult with an attorney with experience in immigration, and do not miss this opportunity for justice delayed.