A Fatal Ending for a Family Forced Apart by Immigration Law
The tale of the Enscalada family is sad because it demonstrates: (1) the harsh reality of current immigration laws, (2) how lack of counsel or poor legal advice may have contributed to this tragic ending, and (3) the uncertainty and difficulties of consular processing.
Mr. Enscalada, who entered without a visa or other valid entry document, was picked up by immigration agents on July 2006. Mr. Enscalada chose voluntary departure. Whether this decision was made upon conferring with counsel is not known. However, once counsel was retained, the Enscaladas were ill-advised that the process would only take 2 months to a year. Moreover, the Enscaladas were never advised that upon leaving the United States, and absent a waiver, Mr. Enscalada would be barred from returning to the United States for 10 years.
Rather than taking the voluntary departure, and triggering the 10 year bar, based on the few facts provided by the article it is conceivable that Mr. Enscalada may have been eligible for relief under § 240 A(b) of the Immigration Nationality Act. Cancellation of Removal for Non-Lawful Permanent Residents, as it’s more commonly referred to, allows certain persons who entered the US without a valid document or visa to remain in the US if they are able to demonstrate to an immigration judge that deporting the foreign national would result in “exceptional and extremely unusual hardship” to a US citizen or lawful permanent resident (LPR) spouse, child, or parent. Working in Mr. Enscalada’s favor would have been the fact that the couple had two (2) United States citizen daughters with another one on the way, and that Mr. Enscalada was the sole provider.
Although the “exceptional and extremely unusual hardship” is very difficult to demonstrate, filing for cancellation of removal in immigration court would have allowed Mr. Enscalada to remain in the US pending the outcome of a hearing before an immigration judge. This would have given the Enscaladas more time to prepare themselves and more importantly their children for the possibility that “Daddy Segundo” may be absent from their lives for an extended period of time in the very near future. Mr. Enscalada would have been able to remain with his family and community and receive the emotional support that he desperately needed to get him through this ordeal. Furthermore, as long as Mr. Enscalada remained in the US, he would not have triggered the 10-year bar preventing his return to the US.
Lastly, and well worth mentioning is the high degree of difficulty and uncertainty in dealing with foreign consulates and consular processing. As the Enscaladas quickly discovered, there is almost no accountability for agents at consular posts; they have a great deal of discretion; and there is no clearly defined process to appeal an adverse decision. Faced with what appeared to be a never-ending bureaucratic nightmare, and the possibility of never seeing his family again, Mr. Enscalada took his own life.
Categories: Immigration Law