Jamaica Gleaner
Published: Tuesday | October 13, 2009
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Which way to turn?

My female relative has lived undocumented in the United States for the past eight years. She has three children and was married but divorced in 2005 in Jamaica.

This man abused her physically, emotionally and verbally and was the reason she ran from Jamaica while pregnant.

When things became difficult, she urged her ex-husband to come to the States and help with the children. This would allow her to find work. He complied.

He did a business marriage and my relative gave him US$6,000 to assist with the arrangement. He had been putting his ex-wife under a lot of pressure for the money and to sign papers to get custody of their eldest child.

My relative's ex-husband lived with his fake wife and obtained a green card which expires in 2018. The child's expires in 2010. They have also claimed income tax for the child even though they are not supporting him. Recently, the ex-husband asked for the child's green card, but the mother doesn't know where it is.

Can they renew the green card without having the old one? Will the child be eligible for US citizenship seeing that the father isn't?

He has threatened to report the children's mother on her illegal status and wants custody of the children so he can file tax exemptions for them even though he's not supporting them.

Child support

My relative called his fake wife and requested the return of the US$6,000 to use in taking care of her children. The woman told her that with lawyer fee, DNA tests and other expenses it was she who owed her. How could that be?

My relative took her ex-husband to court for child support. He made it clear he would report her to immigration and when deported he would visit Jamaica and murder her. She did not go to court for the second scheduled date.

Your relative is in a weak position. She is illegally in the US and if her ex-husband or his current wife reports her to the Department of Homeland Security she will be deported.

It appears that the youngest child may have been born in the US but the third child who was not sponsored by their step-mother would also be subjected to removal. If that child was less than 18 years of age when the father married his wife that child should have also been petitioned for permanent residency.

The best decision

Your relative needs to make the best decision for her situation and not necessarily what is morally right. If she is not in the US legally, she should not be working and filing tax returns. Therefore, she cannot claim the children as tax exemptions, so there is no loss to her to allow the father to claim the children who are legally in the US on his tax return - notwithstanding the fact that the father is not supporting his children.

If she pursues child support enforcement against the father, he threatened to report her to Homeland Security. If there is a history of an abusive relationship, this suggests that he will report her if she continues.

If the child who was petitioned for has not yet received his/her actual green card, a parent needs to contact Homeland Security to trace the card.

If the father remains married and living with his wife, he can obtain his citizenship in three years or five years if they get separated. The child who received his permanent residency is eligible for citizenship after five years.

Fake wife

You have referred to the father's new wife as a fake wife. If the couple are living together and sharing their assets and debts then their marriage would appear to be real. If at the inception of their marriage it was intended to be a 'business marriage' then it would be fake for immigration purposes. That would be difficult to prove and I would not suggest that your relative complicates her situation by going down that road.

The options your relative has are:

(i) Marry a US citizen and file to adjust her status - if she legally entered the US. She would then be able to exercise her rights to child support and have a court decide how the tax exemptions for the children should be divided.

(ii) Since she is finding it so difficult to survive, she needs to seriously consider returning to Jamaica. At this stage, she would face a mandatory 10-year bar to returning to the US because she has been there undocumented for over a year.

(iii) Give the father custody of the children if she believes that he and his new wife will care for them. The step-mother can petition for the one child who appears to be undocumented.

It appears the US$6,000 your relative gave her ex-husband was the cost of the fees associated with his and their eldest child obtaining their residencies.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. Email: info@walkerhuntington.com

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