Separated by law: Families torn apart by 1996 immigration measure

Introduction

In the days since President Obama’s re-election victory, Republican leaders have been aggressively and publicly rethinking their party’s uncompromising stance on reforming current immigration law. Suddenly, prominent new voices — Florida Sen. Marco Rubio among them — are calling for a different approach, arguing that the GOP’s awkward relationship with the growing Latino electorate depends on addressing this issue. There’s a lot on the table.

The big question for the GOP is whether to sign on to a bipartisan agreement allowing some of the millions of undocumented people in the country to earn legal status. But the president and Congress could also face pressure to look at penalties now enshrined in immigration law — the product of 1996 legislation – that impose harsh punishments on illegal immigrants who apply for legal status based on marriage to a U.S. citizen or some other tie.

Immigration activists blame these penalties for keeping hundreds of thousands of illegal immigrants in hiding. Because of mandatory penalties, citizens or legal immigrants who have who tried to legalize their undocumented spouses have seen them banned from the U.S. for 10 years, 20 years, even life, as the Center for Public Integrity recently reported, below:

In a nation built by immigrants, they thought they could pursue their American Dream — with loved ones at their side. Instead, they’re living an American nightmare that’s tearing families apart and forcing Americans into exile.

Chris Xitco, a native of Los Angeles, never imagined that after marrying his wife Delia in 2002 and trying to legalize her, she’d end up barred by U.S. officials for life, with no pardon even possible for 10 years. She now lives south of Tijuana, Mexico, alone with the couple’s two small children.

T.J. Barbour, a native of San Diego, has been struggling every day to care for a 10-year-old son, since his wife Maythe was deported and then barred from the United States in 2011 for what could be 20 years.

In central North Carolina, Anita Mann Perez has been financially ruined trying to raise three small children since her husband Jorge was exiled for 10 years in 2007. Now she’s moved to Mexico to join him.

Across the country, as illegal immigrants have settled into communities, they have met Americans, fallen in love, married and had children. But when Americans have voluntarily stepped up to sponsor their spouses for legal residency, believing this was the right thing to do, they’ve been shocked to discover their citizenship does not trump mandatory penalties the spouses must face. Far from it.

These penalties, which “bar” the spouses from the U.S. for years at a time, were instituted by Congress in 1996 specifically to punish immigration-related offenses.

Since then, the law governing such situations — and the way it’s applied —has taken a number of twists and turns. Over that time period, waivers have helped many people. And in January, President Obama announced a plan to tweak the procedure by which citizens’ spouses apply for residency, a change that could eventually spare many more families from long, painful separations. But the change isn’t likely to go into effect this year, and it isn’t retroactive. And while thousands stand to benefit, thousands of others simply won’t qualify for easier access to “hardship waivers” that the president proposes — and will be trapped by the small print of the 1996 law. (SEE SIDEBAR)

Under that law, if applicants for legal residency crossed the border once, and were “unlawfully present” for more than one year, they must be issued a 10-year bar from living in the United States. They can then apply for a hardship waiver to try to return sooner and take up legal residency. If applicants have a history of entering the United States multiple times illegally, they can be barred for life — and can only pursue pardons if they remain outside the United States for five, usually 10, sometimes 20 years. Being married to an American citizen may not help at all.

To complete their application process, people who entered the United States illegally must go to their final interview at a U.S. consulate back in their home countries. Often U.S. consular officials must simply deliver the bad news immediately. And that’s that. The bar has begun, and the applicant cannot return.

Oklahoma lawyer Douglas Stump, president-elect of the American Immigration Lawyers Association, said for every 100 people who approach him to try to legalize a family member, more than half involve undocumented people whose immigration violations would qualify them for the hefty penalties mandated by the 1996 law.

The penalties emerged from Republican leaders in a get-tough Congress. They argued the country had become too easy on illegal immigrants by allowing some with family ties to pay fees, show they had no disqualifying police record and adjust their status without having to leave the country. Congress increased from $650 to $1,000 the fine such immigrants would have to pay. But that wasn’t enough, some members said. Such immigrants should also leave to receive the new bars on re-entering for a certain period.

By getting tougher on these undocumented people, supporters of bars reasoned, others would see that it would never be easy for them to transition from illegal to legal status, even by marriage.

Rep. Dana Rohrabacher, a Republican of Orange County, California, defended the tougher rules during a 2001 congressional debate over their merits — and whether to extend a pre-1996 statute that was allowing some immigrants to still adjust their status inside the U.S.

“Yes, there are some heart-tearing cases here,” Rohrabacher said. “Yes, some people who are in this country end up marrying American citizens, and the American citizens find that their loved one is going to have to go back to their home country [for the duration of a bar] in order to be here legally, because they have married an illegal alien.”

“I am sorry,” he said. “If someone is here illegally … then they should go back to their home country to regularize their status.”

Thousands?

Hard numbers are impossible to come by, but the Department of State’s records of immigrant visa rejections suggest that thousands of bars have been handed down over the last decade.

Records don’t single out which of these applicants are spouses of U.S. citizens. Some could be other sorts of relatives. Typically, though, department officials say that spouses are one of the largest groups applying for residency visas globally.

Between 2000 and 2011, visa applicants were able to overcome their disqualification due to illegal presence for more than one year — which carries a 10-year bar — about 89,000 times. However, immigrant visas were denied more than 68,000 times because applicants were unable to get their disqualification for illegal presence waived. The numbers could reflect some volume of repeat attempts by the same people.

During the same period, there were almost 19,000 disqualifications of visa applications for the offense of being “unlawfully present after previous immigration violations.” Only five such cases were reversed. The penalty is a lifetime bar, with the possibility of being able to seek a pardon, but, ordinarily, only after 10 years.

There have been thousands of visa rejections for other immigration-related offenses, including “misrepresentation” of facts during the application process.

It’s also hard to know how many spouses of Americans and parents of American children could feel threatened by potential bars, and have thus decided to continue to remain undocumented. That means families are living with the risk of spouses being discovered and deported rather than trying to apply for residency.

The Pew Hispanic Center, a nonpartisan research center in Washington, D.C., estimated last year that more than 16 million people in the United States are in families with at least one undocumented member.

About 9 million of these people are in families that also include at least one U.S. citizen child. Other adults in the families could be citizens, or they could be legal immigrants. Most illegal immigrants, Pew also estimates, have been in the United States for 10 years or more — long enough to start a family.

“We are talking mostly about younger families with small children,” said Randall Emery, one of the founders of American Families United, a national network of citizens whose loved ones have been barred — or would be.

Emery’s group applauded Obama’s easing of the hardship waiver rules (see “A dizzying series of legal twists and turns“), which could benefit some of its members. Eventually. But the proposed change is not bringing any relief to Americans who are already separated from husbands, wives and children.

The Barbour family

T.J. Barbour, a software engineer in his early thirties, knows what he is doing every Wednesday night and every weekend.

The San Diego resident leaves his Rancho Bernardo neighborhood, packs his car with household supplies he can buy for less in the United States, like toilet paper, and drives over the San Diego-Tijuana border on those Wednesdays through heavy traffic to see his wife. Their son Lucas, 10, goes with him. They come back before dawn Thursday morning. And then they return on the weekends, so the boy can spend time with his mother, who lives in a small apartment just south of Tijuana.

After getting a late start one recent Saturday, T.J. pulls up to mom’s place at night, with Lucas asleep in the back. Maythe reaches in and embraces him, and helps him stagger into the house while she asks him, in English, how his American grandparents are doing.

On Monday morning, before dawn, Maythe helps Lucas into the car so he can sleep a bit more — he has to go to school — and T.J. checks underneath the vehicle to make sure drug smugglers haven’t attached a box to the bottom of the car, a popular way to get goods across that can later be retrieved.

Maythe drives the car close to the border crossing so son and husband can get some sleep and then she takes two buses home. It is a grueling routine. She cries bitterly in relating how — despite being married to T.J. — she was deported from the United States and told she would remain in Mexico for 20 years before being able to join her family again.

“I recognize that one commits an error by crossing [the border],” Maythe said in Spanish. “But sometimes necessity makes you do things.”

T.J. was just out of high school in San Diego when he met Maythe, at Burger King, about a dozen years ago. He tried out some rudimentary Spanish on his pretty co-worker, and it clicked. “I definitely saw something special about her,” he says.

Maythe was reluctant to get involved because she already had a young daughter to support, and was struggling to pay off medical bills in Mexico. She was also trying to get away from a threatening experience back in her home in Mexico’s southern Guerrero state, a history T.J. says was so traumatic he won’t discuss it.

Little by little, the two fell in love. “I have no doubt we were meant to be together,” T.J. said. He admired her hard work, and her devotion to her daughter, whom he adopted and is now also sponsoring for legal status — a process he hopes will be more forgiving since she grew up in San Diego.

T.J. knew that Maythe had tried to get over the border twice, and was caught the first time. A smuggler told her to sit in a car and not say anything if a guard asked for her papers. She and others were caught. The smuggler then put her into the trunk of a car with tiny holes in it to let in air. She made it that time, and subsequently found jobs at an Olive Garden restaurant and Burger King, among others.

“Like most people,” T.J. said, “I was under the impression that, well, if she gets married to me, we’re set.”

They consulted with a lawyer before they married in 2002, and T.J. was shocked to learn that it wasn’t that easy. The lawyer explained the complexities of the law, and what they were in for, but thought Maythe might get a waiver. The couple decided to go slow, out of fear.

Eventually, a paralegal reviewing their case told them that Maythe’s previous deportation would disqualify her from a hardship waiver and they’d be better off hoping Congress made changes.

“It was basically back to living in the shadows,” T.J. said.

Maythe gave birth to Lucas, and T.J. graduated from college and started his career as a software engineer. He began a graduate program. They owned a home and Maythe “did all those mom things,” taking Lucas to school, participating in his class activities and cooking tasty meals.

It all fell apart when Maythe was stopped in 2010 by a police officer in the San Diego community of Escondido who wondered why she was driving slowly. She had been looking for a friend’s address. The officer called immigration agents.

T.J. said he had contacted the office of his congressman, Rep. Brian Bilbray, a Republican known for tough talk on illegal immigration. T.J says an office staffer assured him that Maythe would probably not be deported.

T.J. said an immigration agent suggested to him, informally, that the couple accept Maythe being deported, and that maybe she could come back soon with a waiver. T.J. kept thinking he had additional rights as a citizen, and refused. He decided to fight to keep Maythe, and filed a petition in a last-ditch bid to get her asylum based on trauma she’d been through in the past.

While waiting for a hearing, Maythe was confined to a detention center in San Diego County for five months. She didn’t see her children once because she and T.J. agreed it would be horrible for them to see her there.

When Maythe had her asylum hearing, T.J. packed the immigration court with co-workers, family and friends. Lucas sat with him in the front.

“I always thought, ‘Look, they’ve got to be going after criminals, after the narco-traffickers and everything,’ ” T.J. said. “What are they going to do with a little housewife?”

The judge denied Maythe’s bid for asylum, which would have let her remain in the United States. The judge, T.J. said, rushed from the court with no explanation. He said lawyers told him that judges fear that if they give too many Mexicans asylum, too many more will ask for it.

Maythe was deported in early 2011. Agents left her in Tijuana, she said, with nothing but the clothes she was wearing when detained and a cell phone with a dead battery. She had to beg for people to let her call T.J.

Because of her two deportations, T.J. said he’s been advised, she will be barred from trying to obtain legal residency and re-entering the United States for 20 years.

Maythe spent her first nights alone in Tijuana standing on a border bridge, she said, crying so hard a guard told her he was concerned she would kill herself.

Her health deteriorated, and the whole family began to put on pounds. Maythe got a job that paid about $10 a day to hand out fliers for business. She began to turn to her parents’ Jehovah’s Witness faith. She found a congregation in Tijuana, and T.J. joined as well. Now when he visits they spend part of that time dressed nicely and making rounds to spread the faith.

T.J. is concerned about the long-term impact of the separation from his mother. Both parents worry about the draining physical and psychological impact of Lucas being packed into the car and spending hours inching through traffic as they cross the border every weekend.

Lucas can’t really participate in sports or weekend activities now, T.J. says, and he’s so busy balancing job and home that all he can do is throw together a quick dinner for his son and keep the house from being a mess.

Maythe says it wouldn’t be right to pull Lucas, who doesn’t speak Spanish, out of school and move him to Mexico to be with her. He doesn’t like the food in Mexico, she said. He doesn’t feel comfortable. “His life is there, everything he knows,” she says. “I still feel he loves me. He makes an effort to come, and he says he misses me. But I am not a part of his total life now.”

Mandatory bars, T.J. says, don’t fit the crime, and they’ve stripped immigration judges and other officials of the discretion to consider the entirety of a person’s life and family situation.

“I want people to know that, hey, we U.S. citizens are really hurting here, and our children are,” T.J. says. “The family ramifications of this have to be taken into account. We need to deal with the fact that people have become a part of the fabric of our society.”

The Xitco family

Chris Xitco, 49, says that with everything he and his wife have gone through, life feels like it’s “her and me, against the world.”

They have two kids, Elisa, 6, and Itzamal, a 1-year-old son.

Chris met Delia, now in her mid-thirties, more than a dozen years ago on the job at a produce-packing company in the Los Angeles area. Chris is not Hispanic, but he spoke some Spanish because he grew up with Mexican workers on a family farm, and he used to surf south of Tijuana as a youth.

The two began to date, Delia taking him to see Latin music concerts. He took her to see him surf.

Delia originally hailed from Nayarit, a state in western Mexico. Chris knew that she had crossed the border illegally, that she’d been caught once in the Arizona desert, detained overnight and then tried again to enter and was successful.

But he knew so many other people who had done the same thing, who were desperate to work. The border, he said, “was a joke for so long.” And he didn’t think Delia’s offense was unforgivable. He knew it was rare to impossible for Mexicans to get work visas, and she came from a poor part of Mexico where jobs were scarce and many had already blazed the familiar trail north.

When the two decided to marry in 2002, Chris was 38, and he and Delia were eager to get settled and have children. Chris said he knew he had to take care of business by legalizing Delia, but he “thought it was a lock because I was a citizen.”

He was so naïve, he said, that he took Delia right into the immigration office of a Los Angeles federal building. He approached a security guard and told him the couple was there because he wanted to “fix” his wife’s papers.

“He put his arm around my shoulder, did a U-turn,” Chris remembered, and ushered Chris and Delia toward the door. The guard did him a big favor, Chris said he realized later. Technically, his wife could have been taken into custody right then and there. The guard gave Chris the address of a website to consult as they were walking out.

In 2003, Chris contacted an attorney, who explained how the law had changed, and suggested that Chris and Delia save their money and hope that Congress would change the laws again.

But Chris returned to the lawyer in 2004. The lawyer did a Justice Department background check on Delia and found no record of deportation. Perhaps when she was quickly turned back at the border once, the lawyer reasoned, it didn’t count.

So they started the application process.

Delia was pregnant when they got word she had an interview appointment, in Juarez, Mexico. The couple didn’t want to risk any chance that the baby would be born in Mexico, fearing that it might jeopardize Delia’s application. They asked for a delay.

Delia and Chris finally went to Mexico for her interview in October 2007, when Elisa was 16 months old. Chris’ parents were thrilled with the new grandchild; Delia’s English was improving and bonds with Chris’s family were growing tighter.

Chris, as spouse, wasn’t allowed into the interview, which is standard procedure.

When Delia emerged and told him she’d been barred, Chris said it really hit him: there would be no special treatment simply because Chris was an American citizen. And his daughter’s birth didn’t change the situation.

“They don’t seem to think, well, what about the daughter? She doesn’t count?” he says. “The system doesn’t have a heart. And it doesn’t have a brain.”

Delia took Elisa and flew to Nayarit. Chris went to Los Angeles. In December 2007 they met in Juarez for a new interview, a hardship waiver interview with the consular office there. Chris argued that he’d be crushed to lose baby Elisa for 10 years, but couldn’t fathom separating her from Delia. But that argument didn’t work. Chris failed to prove that he, as the American citizen spouse, was suffering extraordinary hardship beyond the pain expected by separation.

From there, things went downhill. Delia returned to Nayarit with Elisa. Chris found himself trying to explain over and over to family and friends what the rules were. He flew to Nayarit every few months, but over time, his daughter failed to recognize him, which broke his heart. He called local congressional representatives, whose staff expressed sympathy but urged him to get a different lawyer.

The Xitcos started the whole residency application process again. This time Chris wanted to be better prepared for what he thought would be a subsequent waiver interview. He amassed letters of support from family, a psychiatrist’s evaluation, copies of anti-depressant prescriptions, his Army discharge records. He paid thousands of dollars more in fees, for Delia’s medical exams, vaccinations and other requisites and travel.

At 10:15 a.m. on April 7, 2010, Delia went to her appointment in Juarez. Chris waited with the baby outside. Delia emerged from the consulate and told Chris she was not eligible for a waiver and would have to ask for a pardon in November 2017.

A records check, she learned, had turned up a report that she had entered the United States after being caught once. It was the first time U.S. consular officials had said anything about her being disqualified because she had crossed more than once.

Devastated, Chris moved Delia up to Rosarito, a beach town 30 miles south of Tijuana that’s developing a community of deportees and barred family members of U.S. citizens.

He has settled into a grueling routine of commuting, but seethes when he discusses what happened.

He is now “couch surfing,” sleeping at work or friends’ places. For more than a year, he hasn’t been able to afford his own home in the Los Angeles area. He’s still working in the produce-distribution business. He manages to beg off work a bit early every Friday and drive down to Rosarito, which can mean brutal, three- or four-hour slogs through bumper-to-bumper traffic.

Returning to the United States at weekend’s end is even worse. Chris is perpetually exhausted because on Mondays he has to sit in three hours of traffic just to get a few miles over the border, and then drive on to Los Angeles, another three hours.

Every penny he makes and nearly all his energy goes into managing this separation, Chris said. He can’t get a job in Tijuana, he said, because the earnings are too low, and he feels he’s too old.

Chris is paying for a private school in Rosarito for Elisa, but the instruction is in Spanish, not English. Chris tries to engage her in English, but she answers in Spanish. She can sing a version of the ABC song with a heavy Spanish accent. She can say “see you later,” and “bye” and she understands what the Fourth of July is about.

Chris is worried how she’ll fare later if and when she enters school in the United States. She’ll be ready for junior high by then.

He said his greatest fear, being three to four hours away, is that he won’t be able to protect his family. The house Delia and the children are in has high walls, but thieves broke in once already and looted it. It’s in an area with a lot of transients, people who don’t know one another, and Delia feels she can no longer go out for very long periods of time.

“I don’t trust the neighbors,” she said. She has no friends nearby, nor relatives, and restricts her socializing to other mothers at school.

Still, having the family in Rosarito is better than in Nayarit, Chris said. Delia and Elisa had to hit the floor in a shopping center during a gang shootout there.

Chris said he doesn’t think illegal immigrants shouldn’t be penalty-free if they marry and their spouses want to legalize them. But he thinks a decade-long bar is cruel not just to Delia, but to him and his children.

“She didn’t sell any drugs. She doesn’t know anything about gang signs,” he says. “Crossing the border to look for a job isn’t that much of a crime to me.”

The Mann Perez Family

It took 10 minutes for the consular officer in Juarez, Mexico, to look through Jorge Perez’s application packet for residency and tell him he was barred for 10 years from re-entering the United States, starting that very day in 2007.

“He said, ‘Ok, that’s it. You can go now,’ ” Perez, reached by phone in Mexico, remembered.

When Jorge, now 42, told wife Anita what had happened, her world collapsed.

“When I tell people what I’ve gone through, they’re shocked. They think it’s crazy that an American citizen would have to live in another country for 10 years to be with their spouse,” Anita said. She grew up in Graham, North Carolina, not far from Durham, and most of her close-knit family still lives there.

Since Jorge’s barring, she’s lost the home they were buying, spent all her retirement savings and had to move in with her parents.

This month, Anita, 34, quit a job she enjoyed at a local hospital as an aide in a clinic and packed up some belongings. She moved with the couple’s 7-year-old twins and nearly 2-year-old daughter to join Jorge again. This will be Anita’s third attempt to live in Jorge’s remote town near the Guatemalan border. But she knows it will not be easy.

“At least [in Graham] I know my girls get three square meals and a snack,” she said. Jorge has been trying to get by growing tomatoes. He built a house there with money he saved working in the States, but what he and Anita really wanted to do was build a life for themselves in Graham.

Anita met Jorge at a restaurant in Graham, where he had arrived in 2000 after getting across the border on foot, with a smuggler. Anita had studied Spanish in high school, and he was learning English. She kept going back to the restaurant and he kept talking to her.

They dated, and in 2002 they were married. It was the kind of cross-cultural union that was becoming more common in Graham, where Mexican workers have been drawn to work in roofing and in poultry-packing factories.

Jorge, who learned English quite well, blended in with the family and built a roof for her parents’ house. Anita’s mother still talks about what a good son-in-law he was. “Some people can walk off and leave their children. They don’t care,“ said Nancy Mann, Anita’s mother. “But their daddy does care.”

Shortly after they married, Anita hastened to file in 2003 to make Jorge legal. “He didn’t even want me to do it,” she said. “He didn’t want anybody to think he got married to me just to get papers.”

In 2004, the couple received confirmation from U.S. Citizenship and Immigration Services that Jorge did qualify to continue to pursue legal status based on his marriage to her. They took that acknowledgement as a good sign and thought they were on their way to Jorge getting a green card. The next step was to file paperwork with the State Department, which is tasked with issuing the visas following an interview in Mexico.

The couple’s twins, Fabiola and Fatima, were born in 2005, and all seemed well. But shortly thereafter a deadly hurricane struck Central America and southern Mexico, and Jorge lost all contact with his parents. He told Anita he had to go south to check on them. So he left, for a total of three weeks, and then re-entered illegally.

Nancy Mann, Anita’s mother, believes Jorge’s actions were noble. “They have to go check on their families,” she said. Nancy was under the impression that if U.S. Citizenship and Immigration Services sent a document acknowledging Jorge’s eligibility, he was all but approved.

When Jorge was finally summoned to his 2007 interview in Mexico, however, he acknowledged that he had crossed the border twice. Lawyers warn applicants that if they are not honest about their history, they risk a lifetime bar. But that revelation of a second illegal crossing made him ineligible for a hardship waiver that could have reduced his penalty for living illegally in the United States for more than one year. Instead, Jorge was told he’d have to pursue a pardon in 2017.

“I believe that he was punished for being honest,” Anita said.

From April through August of 2007, Anita took the toddler twins to Mexico to try to live there with Jorge, but returned after one of them developed a fever so bad she had a seizure. The staff at a small clinic in the Mexican town was very attentive, she said, and put her sick child on an IV and administered medicine. But the experience frightened Anita.

She wrote to congressional representatives, asking for help. They all basically said the law was the law, although some were more sympathetic and said they’d keep her case in mind, Anita said.

She visited Jorge on occasion, and in 2010 Anita tried to live in Mexico again with the twins. She and Jorge ultimately agreed she should return to North Carolina because she had a high-risk second pregnancy. She used up all her retirement savings so she could comply with doctor’s orders to stay off her feet and not work.

When her third baby was born, she traveled down to the Texas-Mexico border once and crossed over just so Jorge could see the baby. Then she returned to Graham, and put the twins in church school and thought long and hard about what to do.

She scattered photos of Jorge around the room she and the girls slept in, and they talked every day with him. Last Easter Sunday, she hit a painful moment when one of the twins leaned over and whispered to her. “All the daddies are here. Why can’t my daddy be with me?”

As Anita was preparing to go to Mexico this month, the twins talked about being excited to see their father. “He’s going to paint my wall with horses,” Fabiola said. “He’s going to make me a toy box.” But the girls said they were anxious about having to speak Spanish and adjust to school there.

Anita is worried about how they’ll survive. She hopes she can earn some money teaching English. But she knows tough times are ahead, and she understands that she might not be able to stay in Mexico.

“When they give out these bars, they’re not just giving them to one person. They’re giving them to a family,” Anita said. “It’s actually worse than a prison sentence. People in prison can do a lot less time, and do a whole lot worse things.”

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