Breaking the Rules to Send for Loved Ones Left Behind : Some Believe Amnesty Program May Encourage Illegal Smuggling of Spouses, Children Into U.S.

Benito Ortega made a decision: Amnesty would finally unite his family, not perpetuate its division. More than a decade as a “commuting” undocumented laborer--working iS. fields during harvests, back home to Mexico for holidays--convinced him that this was no way to live.

“One loses touch with one’s family,” said Ortega (not his real name) during a recent gathering at an uncle’s home in Oceanside, where he was accompanied by his wife and six children, ages 3 to 11. “How do I know if one of the children is headed in the wrong direction? My family needs to be here with me.”

$1,000 Paid to Have Family Smuggled Into U.S.

And they are with him, now, because Ortega, 33, helped smuggle them into the United States. All are here illegally. He acknowledged paying a coyote $1,000 to bring them across from Tijuana four months ago, an investment he says was the best he ever made. If caught and convicted of smuggling, however, he could face deportation and loss of legal status.

The dilemma faced by the Ortega family confronts many of the other more than 3 million amnesty applicants who may qualify for permanent residence in the United States: what to do about spouses and children left behind.

For years, even generations, migrants, particularly men, have been commuting north, sending chunks of their incomes back home to their families. Like countless others before, the Ortegas were divided by the trauma of immigration. The amnesty program deepened some divisions, providing legal status to many while

their families remained undocumented.

Now, though there are no exact numbers, it is clear that many newly legalized foreigners, particularly those from Mexico, are simply bringing their families into the United States illegally, thus bypassing the protracted formal immigration system. Ortega, who now works as a restaurant cook in nearby Vista, says he hopes to remain permanently in the United States. He envisions his children learning English and entering mainstream U. S. society.

“There’s nothing for them in Mexico,” he said as his wife, Rita, nodded her assent and the wide-eyed youths looked on. “Here, they can have an education. They can do something with their lives.”

Thus, some argue, the landmark 1986 Immigration Reform and Control Act, which created the amnesty program and was aimed at deterring unauthorized entry into the United States, may actually encourage the illegal immigration of some: the relatives of amnesty beneficiaries.

The so-called “family fairness” issue--one of the most wrenching of the entire immigration debate--has been present ever since law makers began discussing amnesty. And the matter is likely to linger for years.

Though new immigrants have historically sought to bring their families to their adopted homes--either within or outside the law--there is a sense that amnesty may have hastened the long-term trend. Migrants such as Ortega say their new-found legal status and sense of security prompted them to bring their families now.

“I think (amnesty) may have kind of accelerated what has naturally happened to people over time,” said Anne Kamsvaag, an attorney with the Coalition for Humane Immigrant Rights of Los Angeles. “You have this big new batch of people with legal status, and they’re sinking in roots now, whereas in the past they may have waited and maybe brought over one family member at a time.”

But the immigration tableau varies. Some amnesty recipients are waiting before making any decisions about their families. Others say they prefer that their families remain behind, for personal, social and economic reasons.

“To bring my family here now would be too great a responsibility,” said Guadalupe Ramirez Robles, a 40-year-old father of five and an amnesty recipient from the Mexican state of Oaxaca, who currently resides in a crude shack above a Carlsbad flower-packing shed where he has found work. “I would have to rent an apartment, pay for their food here. And what if I lost my job? Who would provide for them?”

Frustrating Legal Wait

Families split by amnesty face an exasperating wait if they seek legal reunion.

For some nationalities, notably Mexicans, it can take a decade or more for legal residents’ next of kin to immigrate through the existing preference system. The waiting lists are bulging, and are expected to expand as more amnesty recipients petition to bring in their relatives.

Alternately, foreign nationals can apply for U. S. citizenship, a process that takes at least five years after gaining legal residence, and then petition for their families, waiting up to another year for processing. But some would rather retain their foreign citizenship, or they may not be able to pass the civics and English requirements.

For many, the tortuous delay is unacceptable.

For Central Americans, the next-largest group of amnesty applicants after Mexicans, the legal process is quicker for those seeking to bring their kin north; waiting lists are generally backed up only about two years.

Long before Congress approved the amnesty laws, there was the question of what to do with the still-undocumented spouses and children of those who would become legal through amnesty. The eventual legalization program left the question open, providing no automatic “derivative benefit” for those facing separation.

Controversy Erupted

In response, however, the U. S. Immigration and Naturalization Service pledged not to deport or remove spouses and children of the newly legalized if severe hardship could be demonstrated. The INS says it has strictly adhered to the policy.

But critics say many family members are being detained and removed from the United States in apparent contradiction of that. In May, a controversy erupted in San Francisco when the INS returned a 15-year-old boy to Mexico even though his father had obtained amnesty.

Regardless of the “fairness” policy’s effectiveness, the fact is that the INS initiative applies strictly to relatives who are already in the United States. Likewise, a much-publicized, recently passed amendment in the Senate, sponsored by Sen. John H. Chafee, R-Rhode Island, would prohibit the deportation of spouses and children of amnesty recipients who were in the United States as of Nov. 6, 1986, the date the immigration reform statute was signed into law by President Reagan. That amendment, part of a wide-ranging and controversial overhaul of the immigration law, faces an uncertain future.

But, even if it became law, the provision would do nothing for the many undocumented relatives still outside the United States, or for those who have arrived since November, 1986. Meantime, undocumented immigrants arrested along the U. S.-Mexican border--about 1,200 each day in the San Diego area--are routinely sent back to their home countries, usually Mexico, or put in deportation proceedings, regardless of whether they have close relatives with amnesty. Some advocates contend that all children and spouses of amnesty recipients should be allowed to immigrate to the United States.

“It seems to make a lot more sense just to let these people come in legally and work,” said Emily Goldfarb, director of the San Francisco-based Coalition for Immigrant and Refugee Rights and Services. “Most are going to come anyway.”

Would Create Pandemonium

But INS and other officials disagree, saying that such a policy would overwhelm the immigration process and trigger pandemonium at the border.

“We granted amnesty to individuals, not to families,” said Duke Austin, an INS spokesman in Washington.

That attitude, according to some, ignores human nature and a longtime, basic tenet of immigration law: family unification.

“Huge backlogs for family members seeking to be reunited are just going to undermine the law and, frankly, encourage illegal immigration,” said Cecilia Munoz, senior immigration policy analyst with the National Council of La Raza, a Washington-based Latino lobbying group. “The magnet between families has proved to be stronger than any laws we can create.”

Certainly, that is the case in the Ortega family, which was reunited by virtue of a smuggler’s guidance, paid for in advance with $1,000 cash. Rita Ortega still cringes when she remembers the early-morning darkness of last March 28, when she says she and her six children crossed into the United States from Tijuana, eventually to be reunited with her husband in northern San Diego County.

Before the crossing, Benito Ortega had brought the family’s suitcases over the border, entering legally through the port of entry at San Ysidro with his amnesty card. That evening, a smuggler waited for the family on the U. S. side and drove them north without incident.

“The children were crying in my arms that night,” Rita Ortega recalled. Four of the children are now enrolled in San Diego schools.

As an undocumented person, she has natural fear of la migra, she said, but added that she seldom leaves the couple’s two-bedroom apartment. She is relieved to be part of a cohesive family that is finally together.

Her husband says it’s not easy to make ends meet for the entire family on his $500 weekly salary. And he acknowledges some nostalgia for the freedom of his adventurous former life, 13 years of wandering through the immigrant job markets of the West. But he wants his family together.

“Now,” he said, “now we have roots here. We plan to stay.”