MAY 2003

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Tough Luck
By Yoav Gonen

Roger Calero handed his passport and green card to the immigration official at Houston Intercontinental Airport as he had done many times in the past. It was December 3, 2002, and he was returning to Newark, New Jersey, from reporting assignments in Havana, Cuba and Guadalajara, Mexico for the Spanish-language news magazine Perspectiva Mundial, which is published in New York. The immigration official swiped Calero’s passport through the electronic reader and soon uttered the words that would profoundly affect Calero’s life:

“We need you to step aside into a separate room.”

About three hours later, Calero was informed that the delay was going to be more substantial than he had first suspected.

“It came to my complete surprise that they’re denying me entry,” he says, speaking with a strong South American accent. When he asked to see a lawyer, he was told that he was not entitled to one because he is an immigrant and because he was under administrative detention, not arrest.

After several hours, Calero was led to a local detention center, where he would spend the next 10 days. The case against Calero, who emigrated from Nicaragua to Los Angeles in 1986, was based on his 1988 conviction for selling an ounce of marijuana to an undercover police officer when he was a senior in high school. Calero received a 60-day suspended sentence at the time and had his conviction waived by immigration officials when he received his green card in 1990. His green card was renewed in 2000 without a problem. Yet for some reason the 1996 the Illegal Immigration Reform and Immigrant Responsibility Act, which contains a provision declaring certain criminal acts to be deportable offenses, was retroactively being used against Calero.

“He was a high school student hanging out with friends,” says Calero’s wife, Sarah Katz. “Now they’re trying to say he’s a drug trafficker.”

Most immigration lawyers share the couple’s frustration with the 1996 law, which instituted reforms that were intended to make immigration enforcement stricter. Immigrant advocacy groups see it as being overly punitive and unforgiving. Cyrus Mehta, a member of the American Lawyers Immigration Association and an immigration lawyer in New York, is one of the law’s detractors. But he views an event from last year, not 1996, or even 2001, as the main impetus for the recent emphasis on enforcement. The key event, he says came on March 11, 2002, when it was reported that the Immigration and Naturalization Service belatedly sent copies of student visas to two dead September 11 hijackers.

Mehta believes that the ramifications of that embarrassing public blunder were so great that they have created what he refers to as a “culture of no.”

“There seems to be a fear paralyzing them, in that if we say ‘no,’ we can’t be wrong,” says Mehta. “If we make a mistake and say ‘yes,’ and the person blows up a building, then I’ll be responsible.”

Part of the problem, he suggests, stems from the recent splintering of the immigration service into three offices, all of them under the Department of Homeland Security.

“Under Homeland Security, everything is looked at through the prism of security,” Mehta says.

Although it is too early to assess the effects of the March 1 dismantling of the Immigration and Naturalization Service, recent statistics seem to confirm Mehta’s theory about a culture of no both for benefits (such as green cards), handled by the Bureau of Citizenship and Immigration Services, and enforcement, run by the Bureau of Customs and Border Protection .

Preliminary data posted on the Citizenship and Immigration Service’s web site indicates that total removals, which include forced removals from the country and people turned away at ports of entry (including airports), increased by 25 percent (from 54,585 to 68,410) from October 2002 through February 2003 compared to the same period of time a year previously. Similarly, while the number of applications for immigration benefits (employment authorizations, permanent resident adjustments, green card renewals, and relative petitions) remained fairly constant from one year to the next, the number of approvals for benefits decreased by 27 percent from fiscal year 2002 to fiscal year 2003 .

While the security-minded Department of Homeland Security might applaud the deportation of an additional 14,000 individuals over last year at this time, there is no reason to believe that the stricter policy is affecting possible terrorists. For one thing, people suspected of involvement with terrorism are not deported – they are arrested.

Another cause for concern, numerous law organizations claim, is that the immigration system is becoming increasingly inflexible, unwitting violations of immigration law are being punished harshly, and more mistakes are being made, many of them against people who are legally residing in the country.

Tim Payne, an immigration lawyer in Chicago, represents a client from England who in April was denied admittance into the country upon returning from a vacation in Antigua. He was stopped at Kennedy airport in New York, detained for 24 hours and sent to London because he didn’t have the proper travel documents. The man (who did not want his name to be used) is a chief executive at a company in Chicago and is married to a U.S. citizen, but has yet to receive his green card.

According to Payne, officials had told the man before his trip that he would not need a special travel parole document to re-enter the country. But when he returned, border agents at JFK told him “tough luck” for not having it.

“The benefits section gave him the bad advice and the border people say, ‘It’s not our problem to fix,’” says Payne. “Instead of picking up the phone and trying to work things out, they put him in a [detention] cell for a day and sent him” back to Britain.

Mark Thorn, a spokesman in the New York office of the Bureau of Citizenship and Immigration Services, defends JFK’s increasing reputation as a tough port of entry.

“It is [tough], because our inspections are thorough, because our people are well trained, [and] our people know their job,” he says. “That’s not a bad thing.”

While Payne does not necessarily blame border officials for his client’s predicament, he is troubled by what he sees as poor communication between offices of the Homeland Security, as well as by the shifts in personnel that have taken place as a result of the dismantling of the Immigrations and Naturalization Service.

“They need to make allowances that there are new people working there and sometimes they give bad advice,” says Payne. “It shocks my idea of fairness.”

Mehta also feels that creating three offices out of the former immigration service has led to mistakes by people who may be new to their positions.

Additionally, new officials, as well as those who have years of experience under their belts, are functioning in an environment in which security is increasingly becoming the only factor that is considered.

“They basically have a zero tolerance view at the border,” says Payne. No one knows this better than Roger Calero. Yet he is the first to admit that his predicament is not unique. “I happen to be one of thousands,” he says.

In fact, he is one of hundreds of thousands. According to the Fiscal Year 2002 Statistical Yearbook of the Immigration and Naturalization Service, the total number of aliens detained in the United States was 202,000. About half of them had criminal records, which would include people like Calero. Unlike most immigrants fighting deportation, however, Calero has the resources and stability to wage a public battle against the government. As a result of almost
immediate petitioning by his wife, coworkers and various labor unions with whom Calero had worked in the past -- and most likely because of his status as a permanent resident for 12 years -- the immigration service granted him parole on December 13, 2002. His supporters have continued arguing on his behalf ever since.

“People ask us, ‘Are you going back to Nicaragua?’” says Katz, who is helping her husband prepare for a September 10 hearing at an immigration court in Newark. “And we say, no. We’re going to fight this.”

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