Family Unity Issue : Qualifying for Amnesty--a House Divided by Law

If all goes well, Salvador Sanchez expects to gain legal status under the new immigration law within the year. His wife and two children, however, do not.

“This is the biggest problem of my life,” said Sanchez, who fled strife-torn El Salvador six years ago when his life was threatened. “We’re really afraid because it looks like I will have to separate from my wife and children. What are families supposed to do?”

No one seems to have a clear answer to the question being raised with growing frequency by illegal immigrants.

The Immigration and Naturalization Service itself appears to be giving different answers in different cities.

If Sanchez and his family lived in Chicago, critics note, they might stand a better chance of staying together. Unlike his counterpart in Los Angeles, the INS district director in Chicago says he will use his discretion in order to keep such families together.

Congress avoided the sensitive issue when it passed the landmark legislation law last November. The law, which establishes penalties against employers who knowingly hire illegal workers, also grants legal status, or amnesty, to illegal aliens who can prove they have lived continuously in the United States since 1982.

The INS in Washington, contending that Congress’ failure to provide amnesty for family units was not an oversight, has spurned requests that it settle the issue that threatens to tear immigrant families apart.

Growing awareness that some family members may qualify for amnesty while others may not has sent another wave of anxiety sweeping across an already psychologically battered immigrant community, according to some observers.

They blame this, among other concerns, for damming the anticipated flood of applicants at INS processing centers that began accepting amnesty applications May 5. And some predict that unless the issue is resolved, the legalization program will fail. The government has already agreed to delay implementation of worker sanctions because of widespread confusion over the complicated law.

Contending that the lack of clarity and uniformity over the family unity issue are intolerable, immigrants’ advocates have increased pressure in an attempt to force some action.

Archbishop John May of St. Louis, president of the National Conference of Catholic Bishops, recently urged President Reagan’s intervention on behalf of immigrant families in light of his long-expressed concern for the family institution.

“We feel that the lack of national policy will surely result in the separation of families,” May said in a letter to the President, adding that the policy challenges the credibility of the entire legalization program.

Keeping Their Word

Noting repeated pronouncements by INS officials of their intention to implement the law generously, Linda Wong of the Mexican-American Legal Defense and Education Fund said, “What we want to do is hold them to their word.”

Sen. Alan Cranston (D-Calif.) has introduced a resolution directing the INS to resolve the problem administratively, and Rep. Edward R. Roybal (D-Los Angeles) has introduced legislation to amend the law. But they and other key lawmakers, as well as advocates, including the Catholic Church, hope to avoid a legislative showdown.

Instead, they have focused their attention on pressuring INS Commissioner Alan C. Nelson to address the issue administratively by instructing district directors to use their discretionary power to permit the immediate relatives of amnesty recipients to remain in the United States.

Although INS officials continue to insist that the agency has no authority to set such a blanket policy, advocates who have met privately with Nelson contend that “the door is still open.”

After a meeting last week with Cranston, Roybal and others, Nelson told reporters that the family issue is “clearly a concern” and that he intended to study the issue further.

For the moment, Salvador Sanchez is certain of only one thing: He cannot go back.

He recalled recently in his modest West Los Angeles apartment that the stitches on his bruised faced were still fresh when he arrived in the United States six years ago after a beating for his “anti-government” union organizing activities in El Salvador. “If I go back, they will kill me,” the soft-spoken Sanchez said.

Although Sanchez, 36, a mechanic by trade, and his wife, Rosa, arrived in the United States before the 1982 amnesty cutoff date, she unknowingly broke her eligibility when she left the country for more than the allowed 45-day period to retrieve the couple’s children in El Salvador.

Even if his wife could justify her absence as an emergency, their children remain ineligible for amnesty because they arrived after the 1982 cutoff date, an attorney handling their case said.

Hiding Family Members

While other families may choose to stay together in the United States by keeping non-qualifying members in hiding, this is not an option the Sanchezes have. The family was apprehended by INS authorities about two years ago and face deportation. And although they have filed for political asylum, they are not optimistic, aware that only a few out of hundreds of such applications tend to be approved.

“It’s a very difficult period for us. To think that my wife and children may have to go back to El Salvador and that I will stay, or that I will risk my life and return with them, or that we will go somewhere else and start all over again . . .,” Sanchez said. “The worst is not knowing what will happen.”

Similar dilemmas abound among immigrant families, many of whom are afraid to be quoted by name. Some express outrage at what they call “the injustice” of a law that may separate a wife from her husband or a father from his children for such a seemingly trivial reason as crossing the border with a tourist visa and staying too long in Mexico.

One couple, with two children born in Mexico and three in the United States, expect the whole family to qualify except for an 8-year-old son, who was out of the country beyond the allowed time period while visiting his grandmother in Mexico.

A crucial concern among immigrants is that they will be unable to find work due to the law’s employer sanctions, even if they risk remaining in the country illegally.

A middle-aged Salvadoran man, who said he was jailed and tortured in El Salvador for his political affiliation, worries that he will be a burden on his son if he remains in the United States since he is clearly ineligible for amnesty.

While it appears that his son will qualify, the man noted that his son’s wife will not and that she will most likely lose her job as well.

“He’ll have a hard enough time supporting his family without worrying about me,” the older man said, noting that the couple also have a U.S.-born son to support.

Among the more unusual cases is that of a 54-year-old ship maintenance worker who has lived in the United States for the last 30 years and raised a family here but is nevertheless worried about qualifying.

“Everybody’s always figured I’m a U.S. citizen,” the man, who lives in San Pedro, said in English, a language he has grown comfortable with. “I never did tell my children I was illegal until the other day.”

Deported to Mexico

His concern is that he will be denied legal status because when he was a young man he was charged with obtaining legal U.S. residence through fraudulent means and was deported to Mexico.

“It worries me because I’m not young no more,” said the man, who has served as an officer in several community organizations and in his union local. “I can’t start all over again.”

Some immigrants are not applying for amnesty because they don’t want to list the names and addresses of relatives, as required in the applications, despite the law’s strict provisions of confidentiality.

And as fear fuels persistent confusion over the law in the immigrant community, rumors appear to be gaining momentum. “Is it true that they’re going to take our children away?” asked a young Salvadoran mother recently, cradling her infant child in her arms.

“Those of us who come from authoritarian countries are leery of false promises that turn out to be nothing but traps. Maybe that’s why I’m afraid,” said Carmen, a young woman who said she was a political prisoner in El Salvador before fleeing to the United States. Although she appears eligible for amnesty, she remains skeptical.

“People are traumatized, they’re getting sick with worry about this law,” she said. “If INS had any humanitarian concern at all and saw how families are suffering with this law, they would have to be crazy to do what they are doing.”

INS Commissioner Nelson acknowledges that exceptions may be made on a case-by-case basis on humanitarian grounds.

In a recent television interview, citing a hypothetical example of a husband and wife who both qualify but whose minor children do not, he said the children would be allowed to stay. But Nelson has declined to issue a policy on the issue so far, despite the rising criticism.

“We cannot grant benefits . . . based on family unity when Congress said it should be done on an individual basis,” said INS spokesman Duke Austin, adding that the agency’s critics are “asking us to go back and use our discretion under the old law to apply the new law more liberally.”

Under general U.S. immigration law, district directors have wide discretion in making exceptions based on humanitarian grounds. Rather than deport an alien, they may: defer action in a case--indefinitely if they want; stay a deportation; grant voluntary departure and extend that special status to allow an alien to remain in the country until a future date.

Millions More

Congress considered the issue of family separation when it passed the reform legislation last year but rejected liberalizing language because of the prospect of millions of additional aliens qualifying to remain in the country.

Austin concedes that there are bound to be differences among the nation’s 35 district directors: “Some are more restrictive, others more liberal.”

The way George Rayner, Los Angeles deputy acting district director, sees it: “Either a person qualifies for amnesty or doesn’t. . . . Congress did not say that these (relatives of qualifying aliens) and others with mitigating circumstances should qualify. . . . You have to draw the line somewhere.”

District Director A. D. Moyer in Chicago has a diametrically opposed view. He maintains that the intent of U.S. immigration law is that district directors “exercise their authority in favor of family unity.”

“And we are going to have to exercise all of our discretionary authority as generously as possible and in any way we can to preserve family unity,” he said in an interview. “I think that any law that doesn’t address family unity has some basic inadequacies and that we have to make up for that. . . .”

Change of Status

Moyer said he expects to grant voluntary departure status to non-qualifying immediate family members and extend it if necessary. He added that he will also provide work authorization to such immigrants.

Although he is willing to help, Moyer believes that district directors have been left with the chore of mopping up Congress’ failings and that the issue of family unity would best be addressed through legislation.

Legislators who recall the bruising, decade-long debate that preceded passage of the law, however, would rather not bring the issue back to Congress if it can be avoided.

Last month, the Senate subcommittee on immigration asked Nelson to develop guidelines for district directors to use their discretionary authority in the promotion of family unification, subcommittee staff director Jerry Tinker said.

“They agree in principle that something needs to be worked out,” he said. “Now it’s a matter of working out the guidelines.” Staff-level meetings on the issue have continued, Tinker said, characterizing them as being in the “fermentation” stage. “I’m still hopeful that we can get a consensus.”

Continuing the Pressure

Gilbert Carrasco, director of immigration services for the U.S. Catholic Conference and a leader in a national coalition of advocacy groups, is also optimistic.

“But we need to maintain the pressure,” said Carrasco, who noted that several Catholic bishops, including Los Angeles Archbishop Roger M. Mahony, have written letters of support on the issue. The U.S. Catholic Conference, the largest private agency authorized by the INS to assist immigrants in filing amnesty applications, has helped register more than 300,000 potential applicants in Los Angeles alone.

“Commissioner Nelson has expressed a willingness to make some accommodation to protect ineligible family members, but hasn’t done enough to provide the kinds of assurances that are needed,” Carrasco said. “My sense, however, is that he’s at the point of being receptive to further congressional pressure.”