Foreigner, go home!

Fund for Investigative Reporting

“Lydia” is an American whose roots in western North Carolina run deep. She owns a home in Asheville and works full time at a mid-management job in human resources. A devout Christian, she’s also been active in missionary work for years, particularly in Mexico and South America.

About two years ago, Lydia met “Jorge,” who had immigrated illegally from Mexico in 1994 because he was unable to find work there (the unemployment rate in Mexico is about 50 percent, and it had soared to almost 75 percent in Jorge’s small village). The two have recently become engaged, and both asked that their real names not be used.

After a short stint working in the Texas watermelon fields, Jorge is now working full time in WNC in construction, “paying taxes and supporting this country,” as Lydia puts it, “but we’re trying to buy things together, as a couple — and his income, of course, can’t even count on our credit applications,” because he doesn’t have a green card.

“He can’t write a check, or do the things we take for granted every day,” she continues. “He can’t walk into a bank and deposit his money.”

And recent, sweeping changes in immigration law — specifically, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) — have made it difficult or impossible for Jorge ever to become a legal resident.

“We’re going to get married, no matter what,” Lydia declares. “But I’ll live with the fear every day that [the Immigration and Naturalization Service] will show up and take my husband away.”

Jose Concepcion Pina Patino is a legal permanent resident here, along with his wife, Maria Theresa, and their four youngest children (who range in age from 9 to 21). Jose’s workday at Holly Brooks Dairy Farm in Fletcher starts at 7 a.m. and usually doesn’t end until after dark.

He immediately apologizes for his poor English skills, pointing out that those long work hours leave precious little time for taking language classes. “I feed and milk 300 cows daily, am responsible for planting and harvesting the corn and other crops, plus keeping all the barns clean,” he relates.

The family lives in a tidy but sparsely furnished frame house on the dairy-farm grounds. Rigoberto, the couple’s 21-year-old son, is confined to a wheelchair: Lacking even the simplest motor functions, he requires round-the-clock care, most of which his mother provides.

But that effectively eliminates whatever chance she might have of obtaining work outside the home, making it even tougher for the couple to meet new federal income requirements that would allow them to bring over their two other children, Juan Carlos and Marisela, both now in their early 20s. Ironically, the whole family’s financial situation might significantly improve if they were working here, and helping care for Rigoberto. And under IIRIRA, Rigoberto is barred from receiving disability or other benefits — even though he’s a legal resident (see sidebar).

“I hope that, somehow, someone can help my son,” says Maria Theresa quietly, adding, “If not, we’ll just keep dealing with it here.”

Closing the door on immigrants

“Give me your tired, your poor, your huddled masses yearning to breathe free,” proclaim the famous words emblazoned on the Statue of Liberty, which has beckoned countless immigrants to a fresh start in the so-called land of plenty — a fresh start in a nation of immigrants.

Over the past two decades, however, U.S. immigration law has become more and more restrictive — and confusing. Asheville immigration attorney Jane Oakes says the laws now change so fast that even lawyers find it impossible to keep up. And increasingly, immigrants in western North Carolina are finding themselves caught in a tightening net of legal restrictions.

The major changes engendered by IIRIRA were “needed to address the high current levels of illegal immigration; the abuse of humanitarian provisions such as asylum and parole; and the substantial burden imposed on the taxpayers of this country as the result of aliens’ use of welfare and other government benefits,” according to the legislation’s summary

And there’s no lack of voices in this country calling for even stricter immigration limits, pointing to problems like increased population density in metropolitan areas and the resulting overcrowded schools. The Federation for American Immigration Reform, a powerful Washington, D.C.-based nonprofit organization, feels a tough response is needed to these problems and what FAIR Special Projects Director John Martin calls “a proliferation [in America] of certain world conditions, in terms of greater income disparity between the well-off and the poor.”

These concerns, Martin argues, are becoming increasingly familiar in communities across the country. “Americans who are living in areas that have large concentrations of immigrants — which is an increasingly large number of American people — are looking around and seeing these problems every day,” he asserts.

From all reports, that’s true — at least in places like California, where almost half of America’s estimated 5 million illegal immigrants now live. “In LA, the [illegal-immigrant] situation is approaching civil war,” Glenn Spencer, chairman of the illegal-immigration watchdog group Voices of Citizens United, told Los Angeles Times reporter Maria Puente last year.

But in smaller, rural areas — like western North Carolina’s Henderson County — immigrants, both legal and illegal, do the lion’s share of the agricultural work that is a mainstay of the local economy. In many instances, employers say they depend on that immigrant labor to do work Americans don’t want to do.

Yet, in the wake of IIRIRA, these immigrants face many of the same legal hurdles as their big-city counterparts, in their quest to obtain “legal permanent resident” status (the right to live and work in the United States indefinitely — symbolized by the so-called “green card”).

Raising the bar

One of the biggest hurdles facing prospective immigrants who are trying — as attorney Oakes puts it — “to do things by the book,” is Section 203 of IIRIRA: the Affidavit of Support provision. It says that any immigrant not sponsored by an employer must have a financial sponsor who earns 125 percent of the federal poverty income guidelines, in order to enter this country.

The sponsor must sign an eight-page, binding contract with the U.S. government assuming financial responsibility for the immigrant. The affidavit is legally enforceable against the sponsor for five years or until the immigrant becomes a citizen.

“If the immigrant … ended up needing to receive public assistance, the government could sue the sponsor for the money,” explains Hispanic/Latino Services Coordinator Toerin Leppink of Catholic Social Services. “So it’s pretty much impossible to find a sponsor other than a family member.”

And while an income of 25 percent above the poverty level may not sound like much, for immigrant farm workers, this requirement can be highly prohibitive.

“Farm workers,” says Leppink, “average about $14,000 a year. … And what I have now is family after family that come in who are petitioning for, say, two of their children to come over, and they simply don’t make enough money — although they’re actually living fine on their income, with no public assistance.”

That’s precisely the Patinos’ dilemma. The couple’s two oldest children have been waiting to immigrate since 1991 (only so many people are allowed to legally enter America each year from each country, and Mexico has the longest waiting list). In the mean time, however, they’ve both turned 21 — and been moved into another INS category, which requires the Patinos to meet the Affidavit of Support rule.

Making things even tougher for immigrants like the Patinos is the fact that, despite the lower wages in WNC, they’re being asked to meet the same income guidelines as a person living in LA or New York City. In order to sponsor their two oldest children, for example, the Patinos, a family of eight, would have to prove an annual income of $33,662.

“The Affidavit of Support rules are not based on reality,” charges attorney Josh Bernstein of the National Immigration Law Center (a Washington, D.C.-based immigrant-advocacy organization). “There are situations where you have elderly, financially struggling parents who want to bring over their healthy, working, adult children. In that case, the parent who’s here is going to benefit, and all of society will benefit, because that parent could become a public charge if they don’t have someone to take care of them. …

“I can see the strength in weeding out immigrants who will clearly be unable to support themselves in America, but these sweeping rules, with no consideration for individual situations, are ridiculous. I think the final result is that there’s just this huge drop-off of people who will be separated from their families indefinitely — and that’s cruel.”

Jose Patino, for one, sees little hope for reuniting his family. “I have stable work and a very small amount of money in the bank,” he says, “but I’ll never be able to bring in enough money to bring my children over.”

The pit and the pendulum

Shifting political winds in America — and the sometimes-contradictory immigration laws they spawn — can create a bewildering maze of restrictions for immigrants in quest of a green card.

Conflicts between IIRIRA and prior legislation (which may have been in force when these immigrants arrived) have left many immigrants between a rock and a hard place.

For example, Section 245(i) of the 1994 Immigration and Nationality Act allowed immigrants who had entered the country illegally — but who met certain specified conditions — to pay a $1,000 fine and achieve legal status here, without having to return to their country of origin. (After a hard-fought battle in Congress, and several “stays of execution,” anti-immigration forces succeeded in killing Section 245(i), effective Jan. 14, 1998.)

But under IIRIRA, any undocumented alien who was in the United States for six months or more after April 1, 1997 and leaves the country for any reason will be barred from re-entering the U.S. for three years. If they were here illegally for a year after the April 1 cutoff and then left the country, they would be barred for 10 years.

What’s more, illegal immigrants who did not leave before April 1, 1998 can no longer achieve legal status by marrying a U.S. citizen, or getting sponsored by a family member, as had been allowed under Section 245(i). And while the battle over that provision raged in Congress, many immigrants were left wondering what to do.

“There was this huge dilemma,” says Leppink. “Do you leave the country before the first six months are up and [try to] adjust status at the border — or risk staying in the country, in hopes that [provision 245(i)] will be further extended and you pay your $1,000? Nobody knew what was going to happen.”

When Jorge initially entered this country, his brother was already here, in the process of becoming a legal resident (which he now is). Jorge assumed that he could eventually either apply for legal residency, sponsored by his brother, or pay the $1,000 fine and get a green card.

But as the expiration date of 245(i) approached, Jorge — who, by then, was already engaged to Lydia — had three choices: He could leave immediately and apply for legal status from Mexico; leave before the six-month deadline and be barred from coming back for three years; or stay, in hopes that the embattled provision would be extended indefinitely. Jorge chose to stay — thereby running the risk of being barred from this country for 10 years.

Jorge and Lydia’s story, says Oakes, is all too familiar.

“The [repeal of 245(i)] is supposedly discouraging people from being here illegally,” she points out, “but, in fact, the [new] legislation is actually encouraging people to stay illegally, rather than leave and be barred for 10 years — especially those who now have families, marriages, serious relationships. … It’s like lawmakers are saying, ‘We’re tough on … people who are here illegally,’ but it’s not working.”

Martin, however, believes the repeal of 245(i) — together with the three- and 10-year exclusion periods — will both deter new illegal immigration and reduce the number of illegal immigrants already here. “To put it bluntly, the whole 245(i) program was a reward to illegal aliens, and as such, it encouraged illegal-alien traffic into the United States,” he declares. “Read a lot of the news stories that came out as the deadline was [pending] … and you’ll see numerous instances of immigration lawyers saying their clients were very agitated and making preparations for going home. That, in itself, is a very eloquent testimony to the fact that [these new laws] are seen as a major deterrent.”

Oakes and other immigration attorneys we spoke with refuted this notion. “I’m certainly not seeing a mass exodus among the people I represent and know about,” says Oakes.

Meanwhile, Lydia says she’s unwilling to leave with Jorge to spend 10 years in Mexico. “Where would we be?” she asks rhetorically. “There’d be no jobs for either of us.”

Where do we go from here?

Supporters of more stringent immigration restrictions think IIRIRA hasn’t gone far enough. “We were pushing for a more comprehensive reform package,” says Martin, “which included reform of legal immigration, as well as better control against illegal immigration.” But the legal-immigration reform, he says, got separated during the legislative process “and never saw the light of day, basically.”

Nevertheless, Martin (and FAIR) feel the way to handle illegal immigration is simple and obvious: Deny all jobs to illegal immigrants.

That may be easier said than done, of course — because many of these immigrants end up doing work that no one else wants, for wages most Americans wouldn’t work for.

And that’s just not fair, argues Russell Hilliard, pastor of the West Asheville Hispanic Baptist Mission. Hilliard, a former missionary in Spain, is an active advocate for western North Carolina immigrants — attending INS hearings, teaching English classes, and generally acting as both friend and political ally to legal and illegal immigrants alike.

“It feels like a new serfdom is being created in America. … We want these people to harvest our crops and clean our toilets and do all the dirty work, pay them almost nothing to do it, and not [give them the chance to] receive any benefits or ultimately have the possibility of becoming U.S. citizens. … I place the blame for most of this — in a world that’s supposedly moving toward a global economy — on a few of our Congressional leaders, who have reverted to a colonialism of the rankest caliber in regard to immigration policies.”

Martin, however, believes the reason many Americans won’t perform the jobs that illegal immigrants typically do is precisely that illegals have been allowed to “take over” these markets — and he fears that agricultural and domestic jobs are only the beginning.

“The story of the future is the fact that all our computer-technician jobs are going to be jobs Americans don’t want to do, because we’re taking in so many foreigners to do those jobs right now that it’s suppressing wages and working conditions … and, increasingly, that’s going to be an unattractive area for Americans to work in. That’s what’s happened to agriculture. … [When] you allow aliens to come in and take those jobs, they’ll drive out Americans, because they’ll work for wages that Americans won’t work for. How do you correct that? You get rid of the aliens, you drive up wages and working conditions, and Americans will take those jobs.”

Martin, however, had little to say about how this scenario would affect American consumers, who would presumably end up paying for those increased labor costs.

And Josh Bernstein of the National Immigration Law Center envisions a somewhat different future than the one laid out by Martin. The one positive benefit of IIRIRA, he says, is that it has helped forge a potent political alliance. “The bill … is so horrible, in that it throws all immigrants together and treats people who have been here for years — honorable and good people — like they’re suddenly suspect … that it’s caused immigrants to come together for the first time and sort of recognize their stake in political participation.”

That shift, he continues, is “reflected in the huge numbers that have been applying for citizenship in the last couple of years [1.6 million in 1997, up from about 225,000 per year in the ’80s and early ’90s]. That’s a direct result of this legislation. It’s pushed people to become citizens, to vote, to get involved. Inadvertently, IIRIRA has empowered immigrant communities.”

This report provided by the Fund for Investigative Reporting, a western North Carolina news service.

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