Q: What paths to citizenship are available for undocumented immigrants already in the U.S.?
A: Almost all paths to citizenship require that the intending immigrant be in lawful status at the time of filing for permanent residence. Those who entered without documents, even if they have a qualified relative or employer to sponsor them, must leave the U.S. to file a green card application. Once they leave, they may be subject to a three- or 10-year bar on returning, based on how long they were out of status. Therefore many who are eligible are afraid to apply for a green card because they fear long separations from family members.
Q: What factors determine whether an undocumented immigrant can stay?
A: There are some forms of humanitarian relief available to undocumented immigrants. For example, if foreign nationals can prove they are likely to be persecuted if returned to their home country, they may qualify for asylum in the U.S. It is difficult to prove an asylum case, however, and only a small percentage of those who apply actually receive asylum. There are some immigrant visas available to those who are victims of human trafficking, crime or domestic violence, but these are also difficult cases to prove.
Q: Does the government treat child immigrants differently?
A: Homeland Security is required to screen anyone they apprehend, either at the border or in the interior of the U.S., for a credible fear of persecution if they are returned home. The Trafficking Victims Protection Act, passed in 2008, requires all unaccompanied foreign national children to be screened as potential victims of human trafficking. Children from noncontiguous countries are transferred to the custody of the Department of Health and Human Services for trafficking screening and placed in immigration court proceedings. Children from Mexico and Canada are screened by the Border Patrol. If no signs of trafficking are reported, they are returned home without placement in immigration court.
Q: Immigration courts are hearing many deportation cases lately. How serious is the current court backlog?
A: The backlogs in immigration court vary by location. For example, based on 2011 data, the scheduling wait for a court appearance in upstate New York is approximately seven months while the wait time in New York City is more than 19 months. There is a shortage of immigration judges for pending cases.
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