Amnesty Law Poses Difficult Decision for Immigrants : What Do They Do With Family Left Behind?

Legal U.S. residence status was no longer a problem for Benito Ortega, a longtime undocumented field hand here who received legal residence last year via the farm worker amnesty program.

But Ortega, like so many other newly legalized immigrants, was left with the dilemma of what to do with his wife and six children in Mexico. The amnesty law made no automatic provision to allow undocumented kin into the United States. Because the law fails to address the issue, it left amnesty migrants like Ortega with choices that were either unacceptable to him or to the Immigration and Naturalization Service. He could take up residence in the United States, leaving his family behind for several years before there would any hope of their legal migration to join him. He could rejoin his family in Mexico and periodically travel hundreds of miles to and from jobs in the United States. Or he could keep the job he had, stay where he was and smuggle his family across the border to join him.

Paid Smuggler

For Ortega (not his real name), the choice was obvious. He acknowledged paying a smuggler $1,000 to bring his family across from Tijuana four months ago. If caught and convicted of smuggling, he could face deportation and loss of legal status. But he says the risk is worth it and the money paid to the coyote was the best investment he ever made.

More than a decade as a “commuting” undocumented laborer--working in U.S. fields during harvests, back home to Mexico for holidays--convinced him that that was no way to live. “One loses touch with one’s family,” said Ortega during a recent gathering at an uncle’s home in Oceanside. At his side were his wife, Rita, and their 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.”

Employed as a cook in nearby Vista, Ortega says he hopes to remain permanently in the United States. He envisions his children learning English and entering mainstream U.S. society.

Though there are no exact numbers, it is clear that many newly legalized foreigners, particularly those from Mexico, are doing as Ortega did and simply bringing their families into the United States illegally.

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, namely 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 lawmakers began discussing amnesty. And the matter is likely to linger for years, whatever the outcome of pending legislation in Congress aimed at resolving the matter.

Though new immigrants have historically sought to bring their families to their adopted homes, the desire appears to have become stronger for many in the amnesty program. 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. Most amnesty recipients appear to be waiting before making any decisions about their families.

“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 now lives 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?”

Families split by amnesty may 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.

Alternatively, 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, while others may not be able to pass the civics and English requirements.

The legal process is somewhat quicker for Central Americans, the next-largest group of amnesty applicants after Mexicans, who are seeking to bring their families north; immigration waiting lists are generally backed up only about two years for the next of kin of those Central Americans who gain legal U.S. residence.

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.

In response, however, the Immigration and Naturalization Service pledged not to deport or remove spouses and children of newly legalized migrants 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 policy. 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.

A much-publicized, recently passed amendment in the Senate sponsored by Sen. John H. Chafee (R-R.I.) 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. 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.

Meanwhile, undocumented immigrants arrested along the U. S.-Mexican border--more than 1,000 daily in the San Diego area, the largest single clandestine crossing region--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.”

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.”

This is certainly true in the case of Francisco, 35, and his wife, Lidia, 33, who have three children in the Mexican state of Morelos. He is legal, via amnesty, but his family remains without U.S. papers. Recently, he helped smuggle his wife in from Tijuana, and she is now staying with him in a makeshift migrant squatter’s camp in rural San Diego; the children remain home in care of relatives. Lidia has found some work cleaning houses.

“I want my (children) to be with me, but it’s too difficult if they’re illegal,” Francisco said during a tranquil sunset recently at the encampment, as other men also from his home town nodded their approval. “There’s nothing for them now in Mexico.”

The pull of family togetherness led the Ortegas in Oceanside to breach the law to reunite everyone, children included, despite the expense, the risks and fear. 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 (that) were crying in my arms that night,” Rita Ortega recalled, 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 would like to work, perhaps cleaning homes, she says, but she fears venturing out. At any rate, she is relieved to be part of a cohesive, united family, finally facing the future as one.

Her husband says it’s not easy to make ends meet for the entire family on his $500 weekly restaurant salary, and he too wishes that his wife could leave the house and work. 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.”