Sometimes a citizen child can save his or her illegal alien parent from deportation, on the grounds that the deportation of the parent would create an undue hardship on the child. For example, if the illegal alien parent is the sole source of the family's income or the child has a medical condition that is unlikely to be treated in the parent's home country.
The Third Circuit Court of Appeals has just made a caricature of this scenario by stretching the concepts of "marriage", "parenthood", and "hardship" to the extreme.
Here are the facts of the case, as drawn from the Third Circuit's opinion:
[Luis Antonio] Jimenez [Villa] is a citizen of Ecuador who entered the United States illegally in 1996. In 2010 he began a relationship with Angelica Orozco, also a citizen of Ecuador. Orozco has five children — all U.S. citizens — from a previous relationship, including her eldest son Kevin. In 2013, Orozco and her five children returned to Ecuador to care for a sick relative. In 2014, while in Ecuador, Orozco gave birth to Nathan Jimenez-Orozco, Jimenez' biological son. In the summer of 2014, Kevin returned to the United States to live with Jimenez and complete his high school education. Jimenez is solely responsible for Kevin's care. Around this time, Jimenez was arrested for, and pled guilty to, Driving Under the Influence.
The Department of Homeland Security arrested Jimenez and charged him as removable. In May 2015 Jimenez and Orozco married in an Ecuadorian proxy marriage while Jimenez was in the United States and Orozco was in Ecuador.
Under Ecuadorian law, such a proxy marriage is recognized only if it is consummated; since the couple has been thousands of miles apart since that marriage, consummation did not happen, though little Nathan would seem to indicate that there had been pre-marital sex. While the immigration judge ruled that there was no marriage, the appeals court disagreed.
Then the appeals court ruled that, for immigration purposes, Kevin was a child of that "marriage"; finding that whatever the significance of the marriage for most purposes, it was enough of a marriage to make Kevin a step-son. I do not follow the court's reasoning on this point.
Finally, there is the question of hardship on Kevin. The opinion does not mention his age, but if four years ago he was returning to the United States after about a year in Ecuador to "complete his high school education", one must assume that he had started it at the time, and, four years later one might assume that he was at least 18, and had an ample chance to finish high school.
The appeals decision does not touch the matter of hardship, as it has remanded the case back to the Board of Immigration Appeals. That strikes me as foolish, because despite what the marriage laws may say, it will be very difficult for a court to rule that Kevin is a hardship case. It would appear to me that although the step-father is in double trouble, from DWI and threatened deportation, that Kevin is old enough to take care of himself and no "extremely unusual hardship", which is the standard, could be involved.
There is an additional irony in the case: The mother and five of her children, one a blood relative of Jimenez and the other four more or less step-children to Jimenez, are all in Ecuador; only her oldest child is in the United States. If one is interested in family reunification it would seem to make sense for Jimenez to return to Ecuador, but the judges ruled otherwise.