Can I deported if I am illegally in the United States and get caught by police?

Theoretically speaking, if you are not authorized to be in the United States, you can be arrested immediately, brought before an immigration judge, and deported.  Fortunately for millions of illegal immigrants in the US, that is not how the system actually works and that is why they can live fairly comfortably and go on with their lives.  For all practical purposes, if you are an undocumented immigrant, stay out of trouble and do not do something that will result in an encounter with law enforcement, the probability of being deported is very very small.  That is how the population of illegal immigrants has grown.

In the past, when illegal immigrants were stopped for minor infractions that break American laws, they could be put into deportation proceedings.  Obama Administration has some great news for illegal immigrants going forward.  If you have never had trouble with the law and have only broken the law for something minor, like driving above the speed limit, you will be treated like a lawful resident.  That means that you will pay a ticket but not be arrested or put into deportation proceedings.  A host of other petty offenses are going to be treated in the same manner.

Having said that, DO NOT believe even for a second that you are somehow being treated like a legal resident or that you cannot be detained/arrested and deported.  Unless it is the very first time that you have gotten into trouble and it is something minor, expect a lot of trouble ahead.  Immigration and Customs Enforcement (ICE) is simply saying that it will spend its resources mostly on dangerous immigrants who are either on the run, have committed crimes in the past, or already have a deportation order pending.  So while you can breathe a sigh of relief that every time you interact with a cop you will not be considered a suspect and arrested, but the best thing to do if you are here illegally is to never ever break any laws.  And that includes, always driving below the speed limit and following all the traffic rules, because while the citizens and legal residents can get away with these violations, you have a lot more at stake.

What do illegal immigrants need to become legal?

When Congress refused to act on immigration reform in his first term, President Obama launched the so-called Deferred Action for Childhood Arrivals (DACA) program for those illegal immigrants who arrived as children to America.  In order to defer their deportation by two years and get a work permit to be able to work during this period, they needed to file paperwork along with an application fee of $465.  While more than one million so-called DREAMers were expected to apply, during the first four months of the program only about 300,000 individuals applied.  Why so few applicants?  There were many reasons like criminal background, dropping out of high-school, inability to produce documents that were required for the application, etc., but a significant reason being cited by immigration attorneys and community activists is that they simply don't have the resources to pay the fee.  How can this be?  How can someone not have even $465 while living in a foreign country illegally?

As President Obama and Congress get ready to act on comprehensive immigration reform, undocumented immigrants have to get ready as well.  If they are able to legalize their status and cannot because they were not prepared, what a shame that would be.  So here are a few things that you can do right now, even before anything happens in Washington DC.  I will provide more precise list of things to do when the details of the law are available, but here is a checklist that you can start working on immediately:

  1. Get a valid passport and birth certificate, if you don't already have one.  DACA applicants learned it the hard way that when they approached their embassies and consulates for these documents, there was such a huge backlog that they were delayed in filing their applications.  As someone living in a foreign country, you should always have a valid passport in your possession.
  2. Prepare your immigration file.  Obviously, each one of you will have a different set of documents in it, but you might want to pull out the old passports, especially one that you used to enter the United States.  If you can find it, get the I-94.  If you had other documents with your visa, get them organized.
  3. Prepare your US paperwork in order.  Organize documents that prove where you lived and for how long.  Having rental agreements and receipts is very helpful.  If you own a home, paperwork related to mortgage is extremely useful.  If you had a bank account, put the monthly statements in the file.
  4. Organize your financial and tax information.  If you have worked in the US, put all documents in one place.  Obviously, you worked without authorization and despite this being an illegal act, chances are that the Government already knows about it or will find out when you file your application.  Again, if you used a fake Social Security card to work or even used false papers like a green card, you will have to confess to it, so it is best to have all your documentation in one place.  Similarly, while you were not authorized to work, but since you did, the IRS expects that you file a tax return.  Obviously, filing a tax return is better than not filing it, in the process, you would have admitted to working illegally.  If you used an ITIN to do your taxes for reporting income from work, you have still broken the law, but you would be in a lot more trouble if you worked legally or illegally and did not pay taxes.  In conclusion, prepare complete records of all your income and taxes in the United States, because you will not be able to adjust your status unless you are in the clear with the Internal Revenue Service (IRS).  The better records you have, the easier it will be to fix your taxes, pay what you owe, and maybe even get a refund.
  5. Collect your court papers:  A lot of undocumented immigrants have had some interaction with the law.  While some got into trouble due to their unlawful presence in the country, others have committed regular crimes.  While felonies are deportable offenses and you will not be able to legalize your status at all, if you have committed other crimes and have dealt with law enforcement and courts, you will need to have all the paperwork nicely organized because you will need to provide it at the time of application.  Remember that if this paperwork is incomplete, USCIS will not take chances by approving you.  On the other hand, if the adjudicating officer is in any doubt, he will simply issue a request for evidence (RFE) or reject the application.  If you have not been keeping your paperwork related to deportation orders and other run-ins with the law, it is time to start running around to get the copies.
  6. Save, save, save.  As I said above, the last thing you want to happen is to be unable to legalize your status because you don't have the money to pay for the fees. How much will it cost?  It is very hard to estimate at this point, but my best estimate is at least $2,000 in fees alone.  Since this is going to be an extremely complicated case, you are strongly advised to hire an immigration lawyer to file your application.  Expect to pay at least $1,000 per application.  There is already a conversation that you will need to pay a fine, but the amount is unknown at this time.  And if you have not paid taxes, you will need to pay all the back taxes, along with any penalties and interest.  You see, this is quickly adding up to thousands of dollars.  DO NOT expect that the government will exempt you from paying the fee or a charity will donate it.  With millions of illegal immigrants in the country looking for help, no one would be able to do much.  It is likely that many law firms will offer financing (yes, paying all that money in installments sounds so tempting but in reality you are paying interest rates that can easily be 50% or even higher) but the interest rates are ridiculously high that it is much better to save now aggressively than to borrow it.  


Senator Tim Kaine supports legalization without citizenship

Obviously without a bill under consideration it is not clear what will eventually be discussed and passed, but it is interesting to watch what is on the minds of politicians.  The narrative that I hear coming from many elected members of Congress is that there will be legalization without a pathway to citizenship.  This appears to be the case even though a majority of Americans support a path to naturalization for all illegal immigrants.  My conclusion is that some form of immigration reform is likely under Obama presidency but we need to watch carefully what will it be like.

Sen. Tim Kaine supports legalizing illegal immigrants:     In an interview with the Times, Virginia Senator Tim Kaine is saying that “I’m anxious for comprehensive immigration reform.”  In another part of the interview, however, he says that he is planning to vote for reform that would require undocumented immigrants to pay a fine to get a permanent legal status.  Maybe in his mind he is not thinking about path to naturalization or maybe he is just being practical that Republicans might vote for a legal status but would not be stupid enough to provide a path for naturalization, and thus, ensuring a permanent minority status in Congress without ever winning the White House.

Undocumented immigrants just want legal status:     In my discussions with unauthorized immigrants the theme I am hearing is that they just want to have papers so that they can live without fear, travel to their native countries to visit their families, and really don't care much about what passport they carry.  It is the immigrant rights groups that are making a lot more noise about fighting for citizenship rather than winning something more reasonable. 

Americans support pathway to citizenship for illegal immigrants

If you hear just the crazy Tea Party Republicans and read some of the hateful comments online, you would start to doubt if comprehensive immigration reform can ever be passed.  But when even GOP right wing crazies like Marco Rubio predict that there is a 50% probability that undocumented immigrants will be legalized, you know that there is a lot of noise out there but one has to listen carefully to appreciate the beautiful music coming out of American homes.

Americans support path to naturalization for illegals

It is out of this cacophony that I read this Politico survey that has found that two out of three Americans actually support a path to naturalization for illegal immigrants.  Yes, about one in three oppose it, but these people do not matter and cannot be persuaded anyway, the way they cannot be persuaded to embrace universal health care or marriage equality.

Probability of immigration reform under President Obama

Illegal immigrants have two things to celebrate.  Teabagger Republican of South Carolina Senator Jim DeMint has decided to quit the Senate.  He was a sworn enemy of the undocumented immigrants and was a key player in killing immigration reform in the past.  He would have definitely become a stumbling block to President Obama's Comprehensive Immigration Reform plan.  It is not that he is going away completely.  As the president of the Heritage Foundation, he will continue to have enormous influence over GOP policies and direction, but the way Republican politicians are abandoning Grover Norquist, they might also ignore him.  The best news is that he would not have a vote, especially the power of filibuster, and a think tank can only do so much.

The other important piece of news is that Florida Republican Senator Marco Rubio, while no friend of Latinos (yes, while reasonable people find it impossible to believe but there are some stupid Hispanics who actually are Republicans), is predicting that there is a 50% possibility that some form of immigration amnesty with a pathway to citizenship will pass within Obama's second term.  He tends to prefer a single package of reforms that would once and for all take care of all the undocumented immigrants, though, it might be a devious plot by him to please both sides.  Experts agree that one comprehensive bill to deal with all types of unauthorized immigrants is definitely going to die in Congress but by pushing that bill, he will be able to appeal to the Hispanic voters pleading that he tried to help and someone else killed it, but it will also please his Tea Party supporters who will be happy that Obama failed.