INS should temper justice with mercy

Immigrants: The ones who follow the rules get little attention or consideration.

May 21, 2000|By Ana C. Zigel

TOO OFTEN I pick up the paper and find yet another story about the abusers of our immigration system. Just once I'd like to pick up the paper and read about the other side.

Francisco, a Salvadoran national, came to my office last year. He told me how his wife had recently died of cervical cancer. Her last wish in life was to see her children. They were in El Salvador.

The three kids, aged about 8, 10, and 15, had applied to the U.S. Embassy in El Salvador for visitors' visas to come and see their mother, if only for a week. They made two or three requests; the permission was denied because the embassy personnel did not believe their story.

Their mother died; she never got to see her kids; they never got to say their last good-byes. The oldest boy decided he had to come here anyway, got caught coming across the border, was charged as an illegal immigrant, and was put in front of the immigration court.

You see, unlike Elian Gonzales, he was not Cuban. His father was here under legal provisions that apply only to Guatemala and El Salvador - provisions that do not allow their children to live here with them.

There were few congressional voices advocating his right to live in the United States, and Congress has not passed laws sympathetic to Salvadorans and Guatemalans.

Francisco's son was forced to leave his father and go back to El Salvador and cope with his mother's death alone. He will have to wait five years before he and his dad can live in the United States together again.

I've had several calls from other Salvadorans and Guatemalans who find their children in similar situations.

Congress says it has given the INS the discretion to prosecute those cases they determine need to be prosecuted. But INS policy is to prosecute these cases without exercising that discretion. The judges have their hands tied, too, as Congress gave the power of discretion to the INS, not to the courts.

An attorney and former prosecutor told me he always understood that a prosecutor's job was to exercise discretion to see that justice was served. He won't practice immigration law in the courts any more because he believes that for the most part, the INS mentality/policy is to prosecute everyone; justice rarely comes into play.

Judith Todes (my colleague) and I have been representing a young man from Bulgaria for about a year. In Bulgaria he had been imprisoned and thrown into forced labor for his pro-democracy views. Almost nine years ago, he applied for political asylum in the United States.

In a stunning decision, his case was denied, even though his mother, who had never been imprisoned, was granted asylum. The INS tried to deport him, then decided to grant him permission to stay here because his mother was granted asylum. Then they decided this was a mistake.

Last year his mother applied for citizenship. Once this is granted, her son can file papers and immediately have the right to stay in the United States.

The INS does not know when it will decide the case. It could be another six months or more. However, they don't want to wait to deport this young man. If we lose this case, he must return to Bulgaria, a country he fears, and he will be barred from re-entry for 10 years.

There was recently an article in The Sun about the H-1B program and the abuses perpetrated on the system by employers. Abuses happen in a very small percentage of these cases. But what about the problems that are faced by legitimate U.S. employers?

The H-1B program is a way for U.S. employers to hire foreign professionals for a temporary period of time.

One of my clients, a subsidiary of a foreign corporation, has been trying for some time to recruit qualified U.S. engineers. This company pays more than the prevailing wage, offering competitive salaries with a complete benefits package. They are still unable to find qualified U.S. workers. So they recruit outside the United States.

Unfortunately, the INS stopped accepting applications in March of this year because they reached the Congressional limit for H-1B visas. That has forced some companies to open up offices across the border, where the immigration laws are not as strict.

An alternative for employers is to seek "green cards" that allow them to hire foreign nationals on a permanent basis. But it can take two to three years before the employee can be put to work.

I was recently visited by an Maryland employer who needed to sponsor at least 30 foreign workers; the employer had the opportunity to expand the business. There was no doubt that the prevailing wage was being paid, but the employer could not wait the few years this process could take.

I was told he'll be closing up the shop this summer after completing the existing contracts, letting go of about 30 U.S. workers, because he could not continue in this way. This hurts the U.S. economy.

The system is also hamstrung by bureaucratic delays and errors, and by inflexible rules and regulations.

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