Critics say families legal rights abused by immigration laws

National Catholic Reporter, April 23, 1999 by Rosemary Johnston

`It's unconstitutional People are being denied due process and placed in double jeopardy for offenses they have already done restitution for The INS doesn't see the anguish these families are going through,' attorney charges.

Louis Alvarado lies in a hospital bed at home, a ventilator hose inserted through an incision in his throat to provide oxygen to his inert body.

A shooting 11 years ago left him a quadriplegic. Now 31, he depends on care provided by his parents and six brothers and sisters, which enables him to stay in the family home in Encanto, a low-income San Diego neighborhood inhabited by the working poor.

"There's my dad's bed," he says, his conversation punctuated by the steady pulse of the ventilator and frequent gasps for air. "There" is the corner of the family's converted garage, now Louis' bedroom. The bed has been empty for almost five months now, ever since INS agents came to the house Dec. 1 and took Benjamin Alvarado to the detention center in Descanso, Calif.

Five years ago, his wife, Maria, explained, Benjamin was convicted and sentenced to 90 days in jail for drug possession. "It was his first and only arrest. He hasn't even had a traffic ticket since then," the San Diego hotel worker explained. "Now when I go to see him, they pat me down."

Benjamin is among the thousands of legal permanent residents nationwide facing the prospect of deportation as a result of changes in the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigrant Reform and Immigrant Responsibility Act enacted by Congress in 1996.

In February, Bishop Nicholas DeMarzio, Newark auxiliary and U.S. Catholic Conference chair on migration, testified against the new regulations before the House Judiciary Committee's Subcommittee on Immigration and Claims (NCR, March 12).

According to DeMarzio, the new rules "undermine basic human dignity and human rights, unnecessarily separate and divide families, violate fundamental notions of fairness and equal protection under the law ... and create an artificial `crisis' in [the ability of the INS to detain] truly violent or dangerous individuals."

Under terms of this legislation, any crime committed by a legal permanent resident that earns a sentence of one year or more has been classified as an aggravated felony, making the permanent resident eligible for deportation. Previously, the term aggravated felony referred to crimes that earned a sentence of five years or more.

The legislation is also retroactive, affecting any legal permanent resident convicted of a crime that fits the new definition of aggravated felony, even if the resident has completed time in detention and probation. Thus, even though Benjamin Alvarado already served his time in jail, completed probation and stayed out of trouble, he and thousands of others with similar records are being picked up by the INS and sent to detention centers. They leave their jobs and their families behind.

Unlike previous offenders, they are not permitted to post bond and file a relief waiver, regardless of whether or not they are considered dangerous or pose a flight risk.

Maria and her seven children are U.S. citizens. Benjamin is the only family member who is not. He wanted to be able to own land in Mexico, his 17-year-old daughter Brenda explained.

Benjamin was employed full-time as a truck driver at a local linen supply company prior to his arrest.

"Louis requires 24-hour care," his mother, Maria, explained. "We had two [licensed vocational nurses] working eight hour shifts from 7 a.m. to 3 p.m., then 3 p.m. to 11 p.m. Benjamin would take the night shift, sleeping on the bed in the corner of the garage and then getting up to go to work in the morning."

Now, Maria struggles on her hotel worker's salary to pay the mortgage. Benjamin's namesake, Ben Jr., 23, has completed training as a licensed vocational nurse, and now fills in for his dad at his brother's bedside.

Benjamin's attorney, Jan Bejar, is handling half a dozen similar cases in his San Diego office. "It's unconstitutional. These people are being denied due process and are being placed in double jeopardy for offenses that they have already done restitution for. The INS doesn't see the anguish these families are going through," Bejar said.

In another San Diego case, an Iranian refugee, Fatima (she asked that her last name not be used) advocates for the release of her son, Ray, 22. He was taken into custody in October, two days before his sister's wedding in New York. Ray's family came to the United States as political refugees in 1978 after Islamic fundamentalists overthrew the government of the late Shah of Iran.

Ray's father was a high officer in the Shah's government. He and his family fled Iran when Ray was 6 months old and came to the United States. In 1997, Ray was convicted of possessing drugs for sale and fraudulent use of a telephone. He was put on three years' probation after serving six months in a work-release program.

At the time of his October arrest, he was working at a car rental agency and going to night school. During a routine visit to his house, county probation officers found a pager and a cellular phone in his room, possession of which constituted violation of his probation. Fatima claims he had bought her a car phone after her car broke down on the freeway and she was stranded for several hours, and that the pager belonged to an uncle. But to no avail. Ray was returned to jail one day, long enough for the INS to pick him up.