Criminal Defense of Immigrants

(E)  De Facto Removal.  Another topic that has seen increasing attention is the fate of USC or LPR children who were not subject to removal proceedings, but whose parents have been ordered removed.  In such a case, the parent must decide whether to take the child with them or leave them in the care of someone else in the United States.  The fact that a noncitizen in proceedings has a USC child has generally been found not to prevent the noncitizen’s removal.[555]  The main exception to this is in the asylum context.[556]

[555] See, e.g., Actosta v. Gaffney, 558 F.2d 1153 (3d Cir. 1977); Matter of Anaya, 14 I. & N. Dec. 488 (BIA 1973).  But see Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002) (arguing violation of international law to cause separation of child and parents), reversed, 329 F.3d 51 (2d Cir. May 1, 2003).

[556] See, e.g., Tchoukhrova v. Gonzalez, 404 F.3d 1181 (9th Cir. 2005); Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004); Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002).