Families Must Gaze Across Great Divide of Prop. 187 : Immigration: In some cases, parents are here legally, their children are not. Siblings too are split.

Jose Garcia Molina is a legal U.S. resident who has held a steady job with the same Orange County company for nine years. His 8-year-old son and 3-year-old daughter were born here--and are citizens in a country that they love.

But his is a family divided.

Molina applied to legalize his undocumented wife and 10-year-old daughter two years ago under a federal family unification program, but the process is slow. His family, and thousands of others like them across Orange County, remain split--straddling legality, ridden with anxiety, and subject to a sweeping new law whose course no one can predict.

“I am very happy with my family here,” said Molina, who came to the city of Orange in 1979 and works as a busboy at a local restaurant. “It would be very different to have some of us here and some (in Mexico). It will destroy families to separate them.”

When voters swept Proposition 187 into law by a landslide Tuesday, they may not have had the Molinas in mind as their target. But according to immigration consultants and attorneys who have been swamped with questions from anxious callers in recent days, Molina’s situation is far from unusual.

“That’s a very, very common problem here,” said Michele Garcia-Jurado, a Santa Ana immigration consultant. “Several family members are not here legally and others are. There are families where the mother and father are legal and the children are in the process of being legalized. They’re undocumented until the moment when they have a visa in their hands.”

The initiative denies public education, non-emergency health care and social services to illegal immigrants. It also requires those service providers to report suspected illegal immigrants to the U.S. Immigration and Naturalization Service. A San Francisco County Superior Court judge has temporarily barred enforcement of the educational provision and more than half a dozen lawsuits have been filed challenging the measure since Wednesday.

Garcia-Jurado said the split families are particularly concerned about a provision of the law that could keep their undocumented children out of school.

“It’s so absolutely unfair if a child’s papers are in the works and the rest of his family is here legally, that he should be thrown out of school,” she said.

Molina’s daughter, a shy girl who turned 10 Thursday, said she got worried about her situation when she heard four schoolmates talking about the law, but her parents have assured her everything will be all right.

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The Molinas said they wanted to share their story to call attention to the inequities of the new law.

At the family’s neat Orange apartment, the television is constantly tuned to Spanish-language news. Jose Molina and his wife, Eva, have talked in hushed tones about what might happen if the provisions of the law are enforced before the family can secure visas for Eva Molina and their daughter.

The sudden emphasis on the status that sets her apart from her little brother and sister is not lost on their 10-year-old.

“My daughter said, ‘Mom, I’m not going to be able to go to school. I’m going to have to stay home with you,’ ” said Eva Molina, 35, who worries what might happen the next time she takes her daughter--who has asthma--for a medical checkup. “How are we going to move forward with our lives now? We can’t keep the children studying in the home here like prisoners.”

The measure’s co-author, former Immigration and Naturalization Service Western Regional Commissioner Harold W. Ezell, said the split families are a delicate issue. But he said it is time for families to face the consequences of the action they took when they entered the United States illegally.

“When you put a face on illegal immigration, there are a lot of difficult decisions that will have to be made, and I think that’s a family decision,” said Ezell, who suggested that families may have to decide to return to their home country together if some children are legal and some are not.

“When you made a decision to break the law and come here, some day you’ve got to pay. Perhaps the consequences are some of the ones that they’re facing now.”

Ezell said the measure’s creators did not consider those details.

“I can’t recall us ever sitting and discussing the nuances of each one of these issues, because I don’t think that we’re qualified, or that we should be charged with the responsibility to sort out all of the immigration issues, humanitarian or whatever it might be,” he said. “It’s all part of what I think the attorney general is going to have to do when he goes to the U.S. Supreme Court and puts on the case for California.”

A 1982 U.S. Supreme Court decision, Plyler vs. Doe, granted illegal immigrants the right to a free public education. Opponents and backers of Proposition 187 are convinced their battle ultimately will be fought in front of the high court. Critics of the measure say it is unconstitutional, while supporters predict the Supreme Court will overturn the Plyler vs. Doe decision.

Critics say the new law treats immigrants in black and white terms--as either legal or illegal--while the nuances of their status often are far more complex. They contend that the measure’s authors showed blatant disregard for families such as the Molinas. “Looking at the provisions and how the law is worded, splitting families, or forcing mixed households to make hard decisions, was precisely their purpose,” said Susan Alva, an attorney with the Coalition for Humane Immigrant Rights of Los Angeles.

“Maybe nobody thought about the specifics of this law,” said Jose Molina, 38. “Some people say, ‘Yes, I voted for 187,’ because they thought that the majority of people come here to get on welfare, but that’s not true. For me, the majority of us came to work. I’ve never asked for (welfare) assistance.”

If allowed to stand, the blanket approach of Proposition 187 could signal a shift away from family unification, long considered the cornerstone of U.S. immigration policy, immigration attorneys say.

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Concerns over dividing families were raised after implementation of the 1986 Immigration Reform and Control Act, which granted amnesty to people who had lived in the country since 1982 and allowed them to become legal residents.

A so-called family fairness program was implemented in the wake of that act that granted permits to undocumented family members of people who had gotten amnesty. Then in 1990, a similar program was enacted to assist people who had not made the cutoff date for the previous program.

The programs opened a window for some children and spouses of legal immigrants by allowing them to live and work in the United States while awaiting visas.

But many children and spouses do not qualify under the 1990 program because they do not meet requirements that they be continuous residents since 1988 or married to their legalized spouse since that year.

Judit Arevalo’s son arrived too late to qualify. Arevalo came to Santa Ana from El Salvador in 1979 and is here legally with her husband. But she briefly returned to El Salvador--where her 5-year-old son was born-- and the boy only joined his parents in the United States two years ago.

“This law will affect him. He won’t be able to continue studying,” Arevalo said. “He has memories of El Salvador. He said to me, ‘Mommy, if they pass this law, I don’t want to go back.’ ”

For others, the cost of applying to legalize their children has kept them from doing so.

Edith Funes and her husband arrived in California in 1985 with farm worker visas and spent two seasons picking strawberries and tomatoes in the fields near Bakersfield.

Funes, 33, now lives in Santa Ana with four of her five children. She is here legally. So are her two U.S.-born children, ages 2 and 7. But the older boys, ages 12 and 15, are undocumented.

About a year ago her husband went back to Mexico, and Funes was diagnosed with uterine cancer. Strapped for money and unable to work, she sent a third undocumented son, age 17, back to Mexico to live with his grandparents.

Funes said she never had the money to submit the required immigration forms to apply to legalize the status of her older children, but with Proposition 187 on the ballot, she worried about them constantly. After saving for half a year, Funes took $300 last month and put in the application for her two boys. Funes said her children will remain undocumented until they receive their visas, which could take three years.

“It took me a long time to save it up all by myself,” Funes said. “For me it’s very hard because I don’t have work here. I don’t have anything. For the third son, I don’t have the money now. I just don’t have it.”

Her 15-year-old son, a freshman at a Santa Ana high school, said Proposition 187 has left the boys stranded between the Mexico they left years ago and the country where they no longer feel welcome.

“I’m going to have to stop going to school and I don’t know what’s going to happen,” he said. “My mother would send me back to Mexico, but I don’t like it over there. I’ve been raised here since I was 6.”

Before the election, the teen-ager took part in a walkout with hundreds of other students to protest Proposition 187. His teachers have been supportive, he said, and while most people don’t know the details of his situation, he said the subject has come up in class.

“We were talking about it in school, what a family like ours was going to do,” he said. “It’s going to bring a lot of complications for everybody. Instead of bringing the community up, it’s going to bring everybody down. People will be on the street. I think the people who passed it were just thinking about themselves.”