By Jeff Balke
By Ben DuBose
By Ben DuBose
By Sean Pendergast
By Sean Pendergast
By Calvin TerBeek
By Jeff Balke
By Jeff Balke
They sat, side by side, outside the immigration courtroom on a row of red vinyl chairs, waiting. Fernando leaned forward in his seat, tapping his right foot quietly. He turned to look at his wife. Marie stared ahead, her arms folded across her chest, her legs bent slightly under the chair, her whole body tucked close to her. She had not eaten lunch that day. Playfully, Fernando chucked her chin. She smiled weakly.
Their attorney, Nicole Morrison, stood across from them, leaning against the wall in an electric-blue suit. Her long brown hair, which fell more than halfway down her back, clung to the wall's static pull. Fernando and Marie (not their real names) had arrived half an hour before their 1 p.m. court appointment, but now an hour later, no one else had shown, neither judge nor opposing counsel. The judge was still at lunch, the clerks said.
This January afternoon would determine Fernando's fate, whether he would remain in the United States or be forced to return to the Philippines. Although Fernando has a valid work visa and no criminal record, the Immigration and Naturalization Service intended to deport him.
Fernando first came to the United States in 1991, fresh out of college, to work as a physical therapist for a health care company in Tennessee. Eventually he found work in Houston, where he met Marie. Soon after, Fernando's employer sponsored his application for a green card, the first step to citizenship. A green card bestows permanent residency, which gives the holder the same rights as citizens, except for the right to vote. A green card is acceptance, a welcome invitation to stay in this country. Permanent residents then can apply to become naturalized citizens. As part of standard procedure, the INS interviewed Fernando in 1998.
When Fernando received mail from the INS more than a year later, he joyfully anticipated a green card. But instead, he found a denial. The INS claimed he had lied at his interview. Fernando, offended, insisted he had not. He said, rather, that he had misunderstood INS regulations and made a mistake years before, when he first arrived in America. But he corrected it then. The dispute has cost him time and money, and threatens to separate him from his wife and children. Fernando appealed the agency's decision, and now, four and a half years after he submitted his green card application, it was up to an immigration judge.
Curiously, they were the only people waiting in the hallway outside the courtroom doors. Marie's face, with its plentiful cheeks, remained frozen in quietness. And in spite of Fernando's claim that he had slept all right the night before, his round and usually buoyant face betrayed worry. He had been through a lot already with the INS and seemed resigned to the agency's hold over his life. "Either way, I won't be surprised," he said.
When another half hour passed, Morrison approached the clerks again, who were chatting to each other at the end of the hall behind a glass window. Fernando paced the hallway, watching her. "What?" he heard her say, panic filling her voice. It turns out the judge had expected them at nine that morning. When Fernando had not shown up, the judge had ordered him deported. Yet Morrison's copy of the order listed 1 p.m.
Fernando turned to face the wall and let his head fall against it. "Oh, my God," he groaned.
Growing up in the small town of Cavite, an hour south of Manila, Fernando dreamed of becoming a doctor, playing surgeon with his sisters' dolls and pretending that his fingers were all at once scalpel, scissors and forceps. The youngest of five children, Fernando was the only one who didn't attend college in Manila. Instead, he lived at home and studied physical therapy at the local university.
By 20, Fernando had earned his degree and recruiters beckoned him to work in America. Like nurses, physical therapists are in high demand in American hospitals and clinics. Although Fernando didn't know anyone in the States and had never left his parents' home before, he welcomed the adventure. Everyone, it seemed, was accepting jobs in the United States, and he signed up with a health care company in Tennessee. The company, Tri-County Home Health Service, sponsored Fernando's H1-B visa, a work permit for engineers, nurses and other educated professionals. In August 1991 Fernando arrived in McKenzie, Tennessee, with two other Filipino nationals. McKenzie was a quiet retirement community where no structure stood taller than three stories. "This was not the America I saw on television, not all the big buildings," Fernando recalls.
To Fernando's shock, Tri-County told the three Filipino physical therapists that it did not have work available right away. Fernando felt scared. He didn't know anyone except for the two other therapists, and even they were mere acquaintances that he had never met before the plane ride to the States. He wanted to go home, but Tri-County promised work soon. For three weeks the trio waited, living in an apartment provided by the company. They were bored and wanted desperately to work. So one of the physical therapists called around and found jobs available with a Houston firm. The Filipino workers used their savings to buy plane tickets and went to work for Phil-Am Inc. In accordance with medical regulations, they applied for temporary certification from the Texas State Board of Medical Examiners.
Houston, with its sprawling concrete landscape, required a lot of adjustment. The pace of life was faster here and Fernando worked hard to keep up. The outgoing manner and openness of his American colleagues also seemed foreign to him. "We are taught to hold our feelings in and not say much," he says of Filipino culture.
Because the visas had not expired, Phil-Am told the therapists that their permits were valid. But the company made a big mistake. H1-B visas are employer-specific. If a company cannot employ an H1-B worker, it is supposed to pay for the worker's way back home. Technically, by moving to Houston, Fernando and his co-workers had received unauthorized work, an offense that rendered them deportable.
When the INS learned of the employer switch, it sent each of the three an order to appear in court. Fernando remembers that the Phil-Am attorney took them to INS offices several times to straighten out their visas and sign documents. But he didn't know what he was signing and didn't understand that he had been ordered to appear in court, and that the order constituted the beginning of deportation proceedings. "I was afraid, and I didn't know what to do. They said, 'Sign here,' and I just followed."
Fernando didn't even comprehend that he had a court date until the other two therapists told him that they were supposed to go before a judge. The immigration judge gave them voluntary departure in lieu of deportation. Those who are granted voluntary departure are allowed to re-enter the country, whereas deportees are barred from returning for five to 20 years.
They had four months to leave the country. Instead of going back to the Philippines, which was costly, Fernando and his colleagues went to Mexico. They received new visas at the U.S. consulate in Matamoros and re-entered the country on the same day. They now had valid visas that allowed them to work for Phil-Am.
Everything seemed to go well after that. Fernando met other Filipino nationals at his job. He wrote letters home to his mother, enclosing money. "Now I know what they mean by 'Thank Goodness It's Friday,' " he wrote in one. He had never worked so hard in his life.
But suddenly Phil-Am shut down at the end of 1992, leaving Fernando unemployed for several months. When he found a new employer in the medical center, he knew better than to start work immediately, which would get him into the same work-permit trouble with the INS. His new employer petitioned for a visa before Fernando started the job.
Fernando found this job more rewarding because he worked with seriously ill patients, patients who had faced life-and-death issues. Those kinds of patients appreciate the simple things in life, he says, like being able to take a bath by themselves.
"It has more meaning than helping someone who was well and got injured," he says, "and probably was not thankful for what you did."
Living halfway across the world from his family, Fernando felt like a tiny speck on an expansive planet. But sometimes the world can seem small too. At Phil-Am, Fernando met a woman who had attended the same university in Cavite. They also happened to live in the same apartment complex. And when Phil-Am shut its doors in 1992 and both of them were out of work, this woman's husband began pestering Fernando to attend Bible study with them. No thanks, Fernando would say. He was Catholic, his neighbors were Protestant, and it probably wouldn't work out. But one day his neighbor invited both Fernando and his pastor over. There in the neighbor's apartment, besieged by kind words, Fernando was cornered. He conceded.
To his surprise, Fernando found comfort and encouragement at the Saturday-morning Bible study classes, located in an Alief-area strip mall. "I was jobless and kind of confused, and I think every time we would share something from the Bible, it seemed like God was talking to me." He sat in one corner, and a young woman named Marie sat in another. Marie lived with a group of Filipino nurses, and one of her roommates had invited her to the classes. Fernando and Marie were both so shy that it would be months before they started talking to each other. Eventually they dated for three years. When asked what she saw in Fernando, Marie just giggles.
Marie grew up in Manila, the oldest of four children. Her father's chronic illness prevented him from working, and relatives had helped support the family. In college, she studied nursing because she knew it would earn her a good job in the United States -- while a nurse in the Philippines could make enough to support herself, Marie needed to support her whole family. In 1990, a year after she graduated, her visa was granted and she came over to work at Ben Taub. She worked there until recently, when she quit her job to stay home with her two young children. Her earnings helped put her younger siblings through school. By the time Marie met Fernando, she had applied for a green card. She is now applying for citizenship.
In 1996 Fernando and Marie returned to the Philippines to marry in Manila. They had two receptions -- one in a restaurant after the wedding, and an informal one at Fernando's parents' house. In keeping with custom, before crossing the threshold into the house, the couple ate something sweet for prosperity and good luck. After a three-day honeymoon at a nearby resort, the newlyweds returned to Houston.
"We're just two simple people who got together," Fernando says.
Today Fernando and Marie share a sparsely furnished apartment in southwest Houston with their two-year-old daughter and ten-month-old son. They had been married two years when they discovered she was pregnant. "We found out on our second anniversary," Fernando says. "She was kind of a gift to us." A playpen lies at one end of the living room, and a knee-high gate keeps the children out of the kitchen. Little hangs on the walls. Their answering machine message ends with "God bless you."
In five years the young man from Cavite had achieved his piece of the American dream: a successful career and a family. But he still lacked one key ingredient: a green card. So when his employer agreed to sponsor his permanent residency application, Fernando decided to hire Gordon Quan of the reputable immigration firm Quan, Burdette & Perez to handle all the legal paperwork. After his mess-up with the first visa, he wanted to make sure nothing else would go wrong.
Taking care of business at the INS office located in the Greenspoint area requires getting up well before dawn. Some people even sleep outside overnight. By 6 a.m. the line already has wrapped around the building and into the parking lot. Once the doors open at 7 a.m., applicants shuffle in, and depending on what services they need, whether it's work authorization, naturalization or green cards, they are directed to another line. Some lines are first-come, first-served; other lines dispense numbers and people wait to be called. Numbers are limited, and when they run out, INS officers advise people to come back the next day. Even simple tasks, such as obtaining a form or changing an address, require standing in long lines.
On the day of his green card interview in May 1998, Fernando was relieved he had an appointment and did not have to stand in line. He and his attorney, Quan, arrived early. At the interview, Fernando gave his name, address and other basic information.
But Fernando, Quan and the INS officer knew the interview was a waste of time, because all green card applications for physical therapists had been suspended for several years. But being a cumbersome agency, the INS scheduled the appointment anyway. In 1996 Congress passed a law that made significant changes to requirements for health care workers coming from abroad. The new law required applicants to file visa screens, certification that ensured workers had proper licenses and could speak English. By 1998 the INS still had not issued regulations to implement that law, leaving Fernando's application and those of other physical therapists in limbo.
The INS officer told Fernando that he would just have to wait until regulations were in place. The interview lasted five minutes. "It was quick. I barely remember it," he says.
Over a year later, in July 1999, having heard no news about his green card, Fernando filed for a renewal of his work authorization. In September he received shocking news: The INS sent a Notice of Intent to Deny. When he had filed for his work permit, the letter said, the INS had discovered he had an old file in another office regarding his unauthorized employment with Phil-Am, which had resulted in deportation proceedings. Because Fernando had not disclosed this at his interview, the INS concluded, he had "willfully misrepresented a material fact." And that was grounds for deportation.
The letter, signed by district director Richard Cravener, advised him that, for a fee, he could submit a waiver. Cravener did not return calls from the Houston Press.
Fernando says he didn't understand that getting notice of a court date was technically part of deportation proceedings. Neither the green card application nor the work petition form asked if he had ever been in deportation proceedings. And the officer who interviewed him never asked if he had been given voluntary departure, only if he had been deported.
"The officer never asked this question," says his current attorney, Nicole Morrison, who works for Quan's firm. "It can't be a lie if she didn't even ask it."
Fernando didn't file the waiver because he feels he did nothing wrong. He would never misrepresent himself to get a green card. Why would he, when the INS had his record? Even if Fernando did file a waiver, it could still be rejected.
"He probably could have gotten a green card by now if he signed the waiver and said, 'Yes, you're right. I lied,' " Morrison says. "He would have one today. But taking the moral high road has its consequences."
Fernando wrote a two-page letter explaining that he had received voluntary departure after his unauthorized work. He submitted affidavits from himself and Quan, and photocopies of his passport and receipts.
But in May 2000 the INS wrote back that Fernando had personally received an Order to Show Cause in 1992, and since the purpose of an OSC is to institute deportation proceedings against an individual, Fernando was "fully knowledgeable" of the proceedings, and his "blatant omission" during the interview rendered him inadmissible to the United States. Plus, the letter continued, the INS officer who interviewed him specifically asked if he had "ever been placed in deportation proceedings, excluding proceedings or removal proceedings."
His application was denied, the letter continued.
"There is no appeal to this decision."
In 1893 the INS employed a total of 180 employees; most of them were stationed at Ellis Island to inspect incoming immigrants. Today more than 30,000 employees work in 36 INS district offices in the United States and abroad. In addition to granting citizenship, the agency is responsible for maintaining 8,000 miles of international boundaries, adjudicating refugee and asylum issues, and overseeing intercountry adoptions, foreign students and tourist visas.
The Houston district office is one of the busiest, and its heavy workload has plagued it with problems, including one of the worst backlogs of green card applications in the nation.
Mariela Melero-Chami, a spokesperson for the INS Houston district office, says the agency knows it has flaws but is working to improve its services.
"Our director has made it his personal No. 1 priority to seek resources that we know a city like Houston is in need of in the area of immigration," she says.
New laws also have complicated the INS's job. In the last two decades, against a backdrop of anti-immigration sentiment, Congress has passed inflexible immigration policies that have made it difficult for legitimate immigrants to come to this country.
In 1996 Congress tightened immigration laws by passing the Illegal Immigration Reform and Immigrant Responsibility Act, which expanded the definition of "aggravated felony" to include offenses such as shoplifting and writing hot checks. The law also allowed these crimes to be applied retroactively so that longtime legal residents could be deported for minor offenses committed decades ago.
While immigration attorneys know the INS must implement these laws, they also say that the district offices have some discretion. The attorney general of the United States has the power to adjust the status of any immigrant, if certain conditions are met, and district offices act in her stead.
And the Houston district office, they complain, can be unwieldy, bureaucratic and even downright rude.
"I see a lot of pettiness," said one attorney who asked not to be named. "They're suspicious of people and think everyone's trying to pull something over on them. In some cases, it's justified, but they don't give people the benefit of the doubt."
Nicole Morrison believes another office would have been more understanding of Fernando's situation. "The other districts, it's more a give and take," she says. "If you're not a criminal, they're not going to go after you tooth and nail. In Houston, it's a totally different story."
For Hyder and Betsy Hasan (also not their real names), the inflexibility of the system cost them their home. What was supposed to be a simple address change turned into a nightmare.
Hyder came to America for graduate school and fell in love with Betsy, an American citizen. They have three daughters, and Hyder supports the family, working in sales. "Employee of the Month" plaques crowd their living room walls. After their marriage in 1996, Hyder filed for a green card so that he could legally stay with his family. In 1998 the family bought a house in Houston and moved from Conroe. After Betsy stood in line at the INS to submit an address change, all seemed fine. The Hasans received mail -- including correspondence from the INS -- at their new home.
But inexplicably in January 2000 the INS sent a piece of mail to Hyder's Conroe address. The letter, an order to appear for a green card interview in February, was returned to the INS marked "Forwarding Order Expired." Hyder never saw it.
But the Hasans never received any indication that something was amiss with Hyder's case. In fact, the INS even granted Hyder permission to travel to Pakistan to visit family, and he returned in early March.
In June he went to check on his status. When he reached the front of the line, though, he was arrested. Because he had missed the February interview date, Hyder had been ordered deported.
"Bring your checkbook and get me a lawyer," he cried to Betsy over the phone.
Betsy was allowed to visit only one hour a week, and Hyder spent three weeks in jail until he appeared before a judge. He says guards tried to get him to sign blank sheets of paper, and once even left him in a cell all day without feeding him. He also met other detainees who had languished for months without ever appearing before a judge.
Eventually Hyder was granted a $1,500 bond, which his employer posted.
INS spokesperson Melero-Chami won't comment on specific cases but says it is not unusual for immigrants to be ordered deported when they miss appointments and that three weeks is a "reasonable amount of time" to spend in detention because it depends on the courts' calendars.
"I can guarantee it is indeed the priority of the Immigration Service that while immigrants are detained, they are entitled to legal rights and are detained for a minimal amount of time," she says. "We don't want to deprive someone of freedom, and we have to pay an average of between $55 and $75 per day."
Three weeks was enough time for Hyder and Betsy to lose their new home. Because Hyder wasn't working during that time and the Hasans had to hire an attorney, they could not make their mortgage payments. While Hyder was detained, Betsy and the three girls moved into her brother's trailer.
"People say it was only 22 days, that it was a short time, but if we don't have him, we don't have a family," Betsy says, starting to weep. "What can you do when you don't know if your husband is coming back for a long time?"
This month, half a year after Hyder was arrested -- and after his attorney, Peter Williamson, wrote letters to the INS urging the agency to look at Hyder's record and see that it had made a mistake -- the case was dropped.
Williamson says when he began practicing law nearly three decades ago he would take applicants to green card interviews and the INS would make a decision that same day. These days it takes six months to process a green card application in Seattle, more than a year in New York, and a year and a half in Los Angeles. And in Houston, it takes more than three and a half years.
Under the Clinton administration, the INS has emphasized naturalization -- or citizenship -- leaving fewer resources to process green cards. Still, other offices in diverse cities like Miami and New York don't take nearly as long to process applications as the Houston office.
"When you start thinking about it, four years is a long time. Why, it wasn't more than four years for Pearl Harbor and the Japanese to surrender," Williamson says. "Marriages fall apart. People have arguments; they reconcile. People die. All sorts of things can happen."
If spouses divorce or the American spouse dies during the wait, the applicant can be disqualified. For that reason, victims of spousal abuse may choose to remain in abusive relationships and wait for their green cards rather than be forced to leave the country.
In the case of Rehana Asis, the delay prevents her from ever seeing her mother again. Rehana's husband visited Houston in the '80s and liked it so much that he stayed, leaving his family in Pakistan. After he obtained his green card, Rehana and her children were eligible to apply for theirs as well. But applications for relatives of permanent residents take longer to process than those of relatives of citizens. First, Rehana's husband would have to file a petition for her. Only after that was approved could she file for a green card. The whole process could take more than eight years, and Rehana did not want her children to grow up without seeing their father.
So she and the children came to Houston in 1990 on a tourist visa and have not returned to Pakistan since. Even though she stayed after the visa expired, Rehana, as an immediate relative of a permanent resident, can apply for a green card while living in America because she entered the country legally. In 1997 Rehana filed for permanent residency. Last year she learned her mother was dying from liver cancer.
"I'm afraid she pass away," she says in careful English. "They say the cancer is all over the liver and they can do nothing for her, nothing."
However, her travel application, known as advance parole, was denied because of strict laws passed in 1996 that bar people from re-entering the United States for three or ten years, depending on how long they have been "unlawfully present" in America.
Because Rehana overstayed her tourist visa, leaving the country would trigger the ten-year bar. Rejecting travel requests for applicants who fall under this bar is for their own good, Melero-Chami says.
"To ensure that the individual does not fall under this mandatory bar, we'd much rather -- and I think it's a responsible thing to do -- deny parole if the person will fall under this rule," she says. "Obviously that person may not be able to partake of family emergencies or celebrations. It is indeed in the best interest of the individual."
Those who leave the country and find they are barred from re-entry can apply for a waiver at the American consulate in their native country. The INS office in Juarez, Mexico, routinely grants waivers, approving more than 90 percent of them. But other consulates are not as generous. Depending on which consulate it is, it could take months, even a year, for the waiver to be approved, if at all.
Williamson says the Houston district office could issue a waiver that allows Rehana to travel, but Melero-Chami says waivers apply only to those who have left the country. As long as Rehana remains in America, the bar has not been triggered. "You cannot attempt to waiver what is about to happen," Melero-Chami says.
Rehana is stuck. If the rules were not so austere, she would not be banned from traveling. But if Houston were not so slow to begin with, she already would have her green card and could see her mother one last time.
"I just want to visit my mom for two months," she says. "I have not seen her in ten years."
Nicole Morrison opened the door to the clerk's office and signaled to Fernando: a thumbs-up. Disaster had been averted. Luckily the judge who had expected them at nine happened to be in his office. When Morrison explained the mix-up in her order, the judge rescinded Fernando's deportation order and reset the case for May.
"I'm going to win this for you, Fernando," she had told him earlier with a confident pat. But she wondered why they were in this situation in the first place.
"Given their limited resources, why don't they go after the person who has committed crimes, who smuggled aliens?" she says. "Why go after a person in an occupational shortage married to a permanent resident with citizen children? The only reason I can see for doing this is being vindictive."
Melero-Chami says she cannot talk about Fernando's case, but that the INS tries to handle its green card applications efficiently. With 45,000 people in the Houston area waiting on green cards, speeding up the process is a top priority, she says. The Houston district office plans to hire 23 new officers and 23 staff members this year, which hopefully will shave a year off the processing time by October.
But that still doesn't meet Congress's mandate to process green cards within six months. Congress recently approved a bill that called on the INS to eliminate its processing backlog by the end of 2001.
Nationally, a movement to split the agency in two has gained popularity. After all, the INS has conflicting goals, says Houston immigration attorney Elaine Morley. On the one hand, it tries to deport people; on the other hand, it provides benefits.
"Those two concepts don't work together, and what ends up happening is you have people in customer service who really, in their frame of reference and mentality, are very enforcement-oriented and think their mandate is to look for and find reasons to remove people from this country."
That kind of attitude has frustrated attorneys like Salvador Colon. "The INS is not trying to solve problems quickly," he says. "Their attitude is like what the IRS used to have. If you're there in the morning, all you hear is 'no.' "
Colon is appealing a case in which the INS denied his client permanent residency, claiming that her marriage is a sham. The woman, who is from Romania, came to the United States with her first husband five years ago, then divorced. He was deported, and she remarried a naturalized citizen. Now the INS claims she is still living with her first husband even though they deported him years ago.
"The whole thing boils down to she's white and he's black," Colon says of the married couple. "That's what they don't believe."
Meanwhile, Fernando and Marie must wait another four months for Fernando's day in court. In the worst-case scenario, Fernando will be deported. Morrison doesn't think that will happen, because judges usually give the option of voluntary departure. But if it does, Fernando could wait for Marie to become a naturalized citizen and she could petition for his green card. If he is given voluntary departure, he can apply for a visa through the American consulate in the Philippines. But that could take a year. Either way, he would be separated from his family.
And that seems very unfair, Marie says. Recently she and Fernando ran into the two other physical therapists who came to Tennessee with Fernando and then worked with him at Phil-Am. And they both already have green cards.
"My kids can apply for me," Fernando jokes. They are American citizens, but a long way from 21, the minimum age to petition for relatives.
Fernando and Marie try not to let the case consume them, though it hovers in the background of their daily lives. They have work to do and church to attend and diapers to change. Friends at church pray for them, Fernando says, but they can't do much more than wait and see.
"It's something that we just pray about," Fernando says. "We don't really think about it every day."
Not until Morrison calls, reminding him that his American dream is not yet in his grasp, and that ultimately, in spite of his hard work, this most precious thing is not up to him.