KONA, HAWAII (HawaiiNewsNow) - The story of a Kona coffee farmer facing deportation has grabbed national headlines -- and social media is abuzz with questions.
With Andres Magana's deportation date days away, many are asking why he couldn't become a citizen in the 28 years he was in the islands.
Immigration attorney Clare Hanusz says it's not that simple.
"For people who entered the United States illegally even as children, even if they are married to US citizens, even if they have US citizen children, even if they are pillars of the community there is no way under the law right now for them to get legal status," said Hanusz.
That's been true for years. But the Trump administration has removed safeguards that gave some families a chance to stay together.
"Under the Obama administration many good people were still removed from the United States however there were policy directives that prioritized individuals over others especially those with criminal violations," said Hanusz.
ICE discovered Magana was in the country illegally in 2011 when TSA stopped him at Honolulu airport. He was traveling with his daughter who had a dental emergency.
"Ironically the only option to try and get permanent resident status was when he was put into deportation proceedings," said Hanusz.
Because Magana had been here more than 10 years he could apply to stay but a judge denied that because his children wouldn't suffer "exceptional and extremely unusual hardship" if he was deported.
"It's a super high bar for people in immigration court. That was his one shot at getting a green card. He couldn't meet the standard. And lots of good people can't," said Hanusz.
We've also gotten questions about Magana's past. Court documents show the coffee farmer pays taxes. According to Hanusz many non citizens have tax payer ID numbers. The ID number can be obtained online.
Magana has two DUI convictions. The latest was 14 years ago. Both were not factors in his case. He has no other criminal history. We've confirmed non-citizens can also obtain a permit that allows them to drive.
Magana has been married for a year and a half. The couple filed paperwork that would put him on the track to citizenship more than a year ago. Typically it's a process that takes five to seven months. It's not clear why the paperwork still hasn't been processed.
Another common question we received was, "Why not go back to Mexico and do it the right way?" The attorney says if you've been in the US illegally more than a year you're not allowed to come back for 10 years unless you get a special waiver.
"Many people decide it's safer to live in the shadows than take the risk of leaving and maybe not ever having the opportunity to come back," said Hanusz.
What you need to know about U.S. immigration policy:
- Which undocumented immigrants are being deported?
Right now, almost any immigrant found in the country illegally, even those who have a good chance of becoming legal in the near future, are being placed in the deportation process. This is a result of President Trump's executive orders that eliminated all guidance that had been coming from the Obama administration. In 2013, the Obama administration sent a memo to ICE that said law-abiding immigrants who have intact families in this country should not be deported, but that was erased by the Trump orders.
- Does it matter if an undocumented immigrant has broken the law?
It depends. Magana, for example, had a couple of DUIs but those were not relevant to his case because had been considered law-abiding for at least 10 years (the most recent DUI was 14 years ago) and the government conceded he was of "good morale character."
- What is the process?
The immigration court will hear appeals fairly quickly, but can't stop the process except by finding that the person is legally in the country or has some reason (like likely death or torture in the home country which would make them eligible for amnesty) to keep them here to seek citizenship.
- What if deportation would cause a hardship for the family or community?
The threshold for this is high – one of the highest legal thresholds there is: "Exceptional and extremely unusual hardship to another qualified person."
- What about “dreamers”?
Even though President Trump overturned the executive order that protected them, he has said he doesn't want to hurt young people who were brought to this country by their parents (during a certain period of time). But right now they don't have any more protection than anyone else.
- What about Congressional action?
Before last month, ICE respected legislation known as "private bills" that any member of Congress could introduce. Deportation would be stayed for months or up to a couple of years while the bill was pending in Congress, even if it didn't pass. But last month, ICE told Congress that it would no longer automatically honor private bills unless the chair of the Judiciary Committee or appropriate subcommittee informed ICE that he or she agrees with the intent of the bill.