Hurdles for Illegals Become Clear : INS Rules May Deprive Thousands of Amnesty

Scarcely six weeks before the amnesty provisions of the landmark immigration law are scheduled to take effect, hundreds of thousands of potential applicants face possible disqualification as rules to implement the complex program are defined.

Tentative regulations released last week by the U.S. Immigration and Naturalization Service provide the clearest picture yet available of the many hurdles faced by the estimated 2 to 4 million illegal aliens expected to apply for amnesty, starting May 5.

Lengthy trips outside the country, receipt of “public cash assistance,” insufficient documentation--and, ironically, periods of legal status--are four key areas likely to disqualify large numbers of people even though they have lived in this country since before the amnesty cut-off date of Jan. 1, 1982.

Decisions in many cases will depend on the judgment of mostly inexperienced INS examiners as they interpret 50 pages of complicated regulations. For example, receipt of welfare does not automatically bar an applicant; the standard in such cases is whether the agency considers the alien likely to be a public charge in the future. It also will be up to examiners to judge the value of a flood of documents, such as affidavits that may be used to help prove continuous residence here.

Jose, 27, a Salvadoran who said he has lived in California since 1980, working most of that time, is one of those left in fear and uncertainty. Another is Sonia, 41, who said she came to Los Angeles from Mexico in 1980 and worked steadily for six years, first as a housekeeper, then at a restaurant. Neither can document their early years here, both are now unemployed and both worry that they will not win amnesty. Both asked that only their first names be used.

Sonia, who lives in the Pacoima area, said she married at 13 and bore 14 children before her husband died in a car accident in 1975.

“I worked 16 hours a day in three jobs for five years,” Sonia said. “Then I came here. The first four years I was here, I worked in houses. I couldn’t afford to pay rent, so I was living in people’s homes.”

Missing Documentation

From 1980 to 1983, she worked full-time for a family that later moved to Chicago, Sonia said. The only document she has from earlier than 1984 is a 1981 furniture receipt with her name on it, she said. Beyond this, affidavits from relatives and from the pastor of a church are the only ways she knows of to prove her presence here.

Jose said he fled to the United States because of the war in El Salvador, going first to Northern California, where he worked in San Francisco and Sacramento as an auto mechanic’s helper, receiving payment in cash. Since moving to Los Angeles in 1984, he has worked in warehouses and at a car wash, he said.

After the immigration law passed last year, Jose despaired of winning amnesty because he has no documents from earlier than 1984. A few weeks ago he lost his most recent warehouse job and decided to seek entry to Canada. But Canadian border officials refused him immediate entry, instead setting a hearing date for later this month, he said.

When he was delivered back to American immigration officials, “the guy from the U.S. told me maybe I can prove I was in the country by witnesses or something like that,” he said. Jose was granted temporary permission to be in the United States, and returned to Los Angeles.

Dependent on Affidavits

Like Sonia, he will be dependent on affidavits to prove his presence here during the critical early years. The proposed regulations list affidavits by churches, unions or other organizations among the evidence of residence that may be submitted. So cases such as Jose’s and Sonia’s are far from hopeless.

“It’s going to depend on whether INS believes those affidavits, and how much weight they give them,” said Jose’s attorney, Lynn Alvarez of El Rescate, a Los Angeles organization that aids Central American refugees.

Concerns about documentation and the law’s “public charge” provision are shared by hundreds of thousands of potential applicants, according to immigrant rights advocates.

“We’re looking at a class that for years has tried to be invisible, and has tried to avoid leaving a paper trail,” commented Warren Leiden, executive director of the Washington-based American Immigration Lawyers Assn.

Harold Ezell, the INS Western regional commissioner, said last week that applicants should try to “establish as best they can that they have been here since prior to Jan. 1, 1982” by providing “whatever it takes to prove that in the form of work information, taxes, birth certificates of children that have been born here, school records, church records, affidavits from people--employers, people that they have known, clergy folks.”

“As much of that information as they can possibly pull together is going to help establish their case,” Ezell said. “We realize it’s not going to be letter-perfect on every one of the applications. We’re not looking for ways to deny; we’re looking for ways to approve.”

Helpful Records

Other documents mentioned in the regulations as helpful in proving continuous residence are utility bills, medical records, money order receipts, bank books, letters and other correspondence, Social Security cards, Selective Service cards, automobile records, deeds and mortgages and insurance records. “Any other relevant document” also may be considered.

Sonia said she has none of these for her first few years here. “I didn’t know this would happen, and I didn’t keep those things,” she said.

Sonia’s current unemployment is also a major problem, made even more serious because she is not sure when she will be able to begin working again. She was beaten during a robbery attempt last October while working as a cashier at a restaurant, and lost her job a few days later when chest pains made her unable to work, she said.

“I’m not working because I’m disabled,” she said. “My doctor says it is just because of the reaction to the assault, to the stress. He said I should be well by June.” Sonia said that rather than seek welfare, she has gotten help from a church agency that distributes free food.

“I heard that all kinds of assistance from the government will affect amnesty,” she explained.

Much may depend on whether Sonia finds a new job before applying.

May Be Disqualified

No matter how poor applicants may be, they cannot be disqualified simply because of poverty if they have consistently supported themselves and their families “without recourse to public cash assistance,” according to the regulations. If they have accepted such assistance, the proposed regulations state that they may be disqualified if the INS determines that they are likely to become a public charge.

The regulations define “public cash assistance” as “income- or needs-based monetary assistance” that is “designed to meet subsistence levels.” Not included are food stamps, public housing, unemployment benefits and certain types of medical assistance, including Medicare, emergency treatment and services to children or pregnant women.

While the law itself provides the basic framework for the amnesty program, Congress authorized the INS to create such regulations to flesh out the details of the effort.

The INS-proposed rules concerning cash assistance and useful documents to prove residence are similar for the law’s other amnesty program, aimed at illegal aliens who spent at least 90 days doing agricultural work in this country in the 12-month period that ended May 1, 1986. Many other requirements of that program differ.

Revisions Possible

The proposed regulations still could be revised by the INS on its own initiative or under pressure from Congress or the public. Final regulations are due to be published shortly before May 5, when the INS begins accepting applications--which may be either mailed to the agency or filed through churches and other voluntary organizations. But decisions will still need to be made on a case-by-case basis.

“You’re always interpreting or evaluating the application as it relates to the criteria in the law,” said INS spokesman Duke Austin. “Examiners are going to play a very significant role.”

Ernest Gustafson, the agency’s Los Angeles District director, said that most examiners for the amnesty program will be newly hired employees taken on especially for this program, “the vast majority without experience in immigration.” Some will be current or former INS employees. Most will receive about three weeks of training before May 5, he said. Examiners’ judgments will be subject to review by local supervisors and at the regional level, he said.

Fate Hangs in Doubt

It is quite clear how the rules should apply to Manuel, a welder with a wife and six children in Mexico. Even so, his fate also hangs in doubt.

Manuel spent about eight months in Mexico a few years ago, while the proposed regulations only allow single absences of up to 45 days and total absences of 180 days since Jan. 1, 1982. So even though he has a 1979 California driver’s license and has spent at least part of every year since then in the United States, the San Fernando resident will be turned down if he tells the truth on his application.

A big, strong, cheerful man who was interviewed with the help of a bilingual attorney, Manuel appeared not to fully understand the seriousness of the decision he faces.

“I cannot tell a lie,” he said, when told of the 45-day limit on single absences. “They will interview you, and they will find out. I will tell the truth.”

But when asked why he would even bother to apply for amnesty, when he has been gone from the country far too long to qualify, he replied, fatalistically and wistfully: “I’d be a dummy to tell them I’ve been gone for eight months. I’ll tell them I’ve been gone for two months or three months. I can tell them I’ve never left. I’ve always lived here. Then they’ll ask me, ‘You don’t speak English.’ I would like to be an American citizen, because unfortunately our Mexico is very poor.”

5 Years Jail

If Manuel applies and his application is found to be fraudulent, the INS could refer his case to the U.S attorney’s office for prosecution, not only of himself, but of any person who supplied a false document for use in his application. If convicted, the law provides for imprisonment of up to five years. And if prosecution is declined, the agency could institute deportation proceedings.

Sally Jones (not her real name), a British woman now living in Los Angeles who has worked as a housekeeper and in several other jobs, faces a different sort of problem involving a trip outside the United States.

Jones spent most of the time from 1978 to 1981 in this country, and has been here illegally and continuously since then--except that a few years ago she returned to England to attend her father’s funeral. She re-entered this country on a valid tourist visa, which can be interpreted as having given her a brief period of legal status that could destroy her chance at amnesty.

‘Go Back and Start Over’

“This is really important,” she said. “I’ve been here for almost 10 years. When you leave your own country, there comes a point where your life experience is so divergent from the people you knew at home that you don’t have that much in common anymore. It would be really hard to go back and start over again, and that’s what it would be.”

Jones’ problem emerges from an ironic but fundamental feature of the law: applicants must prove continuous unlawful residence since Jan. 1, 1982, and are in effect punished for periods of legal status.

This provision of the law disqualifies tourists, students and holders of temporary employment visas who were in legal status on Jan. 1, 1982--even if they later overstayed their visas and became illegal--unless they can show that violation of their visa terms was “known to the government” before the end of 1981. “Government” is defined by the regulations as the INS, which means, for example, that someone with a visa term violation known only to the Internal Revenue Service is still ineligible.

Violation of Visa

This appears to disqualify people like Sassan Mazaheri, 26, an Iranian who came as a student in 1978 and earned a bachelor of science degree in aerospace engineering from a college in St. Louis, Mo. His student visa was still valid on Jan. 1, 1982, and although he was working in violation of his visa terms, the INS did not know this at the time, he said. Thus, even though he has now overstayed his visa and become an illegal alien, he is ineligible.

“I really don’t know what I’m going to do,” said Mazaheri, who is now living in Los Angeles. “I’m trying to find a legal way to stay here. It’s very important.”

Anyone who filled in a standard arrival card after the amnesty cutoff date is disqualified by the proposed regulations. However, Mexicans entering with border-crossing cards and Canadians entering for tourism or business trips can make unrecorded entries into the United States that do not affect eligibility.

They are barred because they were “readmitted in a legal status,” thus breaking the law’s requirement of continuous unlawful residence, according to Terrance O’Reilly, INS deputy assistant commissioner for legalization. It is possible, however, that this interpretation might be revised by Congress.

‘Valid Humanitarian Reasons’

Jerry Tinker, staff director of the U.S. Senate subcommittee on immigration and refugee policy, said he believed that Congress intended for otherwise eligible illegal aliens who briefly left the country for “valid humanitarian reasons” to qualify for amnesty even if they re-entered on a tourist visa. To disqualify them is “absurd,” he said.

A variety of other requirements will also trip up some applicants.

The regulations exclude anyone convicted of a felony inside or outside of the United States and anyone convicted of three misdemeanors inside this country. Anyone who left the United States under a formal order of deportation after Jan. 1, 1982, is ineligible.

Various other longstanding rules for admissibility of immigrants also apply, but many of these can be waived in individual cases for humanitarian purposes or to assure family unity.

No one who first entered the United States after Jan. 1, 1982, can get amnesty--even if their spouses qualify or their children are U.S. citizens. But under standard immigration procedures, district directors may stay deportation on humanitarian grounds.

Tinker, the Senate subcommittee staff director, said that representatives of federal agencies are scheduled to appear Tuesday before the Senate Judiciary Committee “to really nail down some of these issues.” The regulations, he added, “are not frozen in concrete at this point.”