New Law Casts Pall Over New Lives

Eldar Brizuela, with daughter Roussy, fears being deported because of the tougher immigration law. Dayna Smith/The Washington Post.

By Pamela Constable
Washington Post Staff Writer
Thursday, March 27, 1997; Page A01

Eldar Brizuela, a Peruvian housekeeper and former nanny, works 60 hours a week dusting furniture and vacuuming rugs for three Washington area families. Between jobs, she rushes to ballet classes and soccer matches with her 8-year-old daughter, Roussy. Her employers say she is terrific; her lifestyle is modest; and she pays her income taxes faithfully.

But legally, Brizuela, 38, should not be in the United States. When her temporary work visa expired a decade ago, she stayed anyway, keeping a low profile and never coming to the attention of immigration authorities. Now, the single mother from Silver Spring could be deported because her adopted country is launching a new crackdown on illegal immigrants.

On Tuesday, April 1, when key provisions of the Illegal Immigration Reform and Immigrant Responsibility Act take effect, Brizuela and an estimated 5 million other undocumented immigrants will have six months to become legal or risk being expelled from the United States for three years and forced to reapply for admission.

Those who remain in the country illegally for a full year after Tuesday, if they are discovered or leave the country for any reason, will be prohibited from returning for a decade. Those who are deported and then caught trying to sneak back in will be barred forever.

Despite alarming rumors that have swept immigrant communities in recent weeks, government officials say that there will be no mass deportations next month and that they will focus most aggressively on foreigners who have committed crimes. Moreover, critics of the Immigration and Naturalization Service say they doubt authorities have either the ability or the will to track down and deport several million people.

But there is no question that the 600-page measure enacted by Congress last year, if strictly and widely enforced, will make it much more difficult for all illegal residents to remain in or enter the United States. Those at risk include visitors or workers with expired visas, political asylum seekers, Central American war refugees and people who crossed the border without documents.

Proponents of the new law say it is needed to reverse the flow of illegal immigrants, who they say compete with Americans for jobs, drain public services and cost the government millions of dollars to pursue. But immigrant rights advocates warn that the crackdown will separate families, punish law-abiding workers and cause great financial sacrifice for people who have been in this country for years.

According to immigration authorities, the illegal population now includes about 2.9 million foreigners, mostly Latin Americans, who entered the United States without visas and settled invisibly into immigrant communities, plus 2.1 million people like Brizuela who overstayed their visas. The new law also will affect about 320,000 Central American refugees whose temporary wartime amnesties have ended.

In Maryland, Virginia and the District, officials estimate that there are 129,000 illegal immigrants, most of them from Central America and the Caribbean. In the District, war refugees from El Salvador far outnumber all other immigrants.

Under the new law, illegal immigrants who are ordered deported will have to meet a much tougher standard to win a reprieve. They will have to prove to an immigration judge that returning to their native country would cause "extreme and exceptional hardship" to immediate relatives such as a chronically ill child or a frail, elderly parent who are U.S. citizens or legal residents.

"Just because you have lived in the United States for several years and don't want to go home, that's not a legitimate reason," said Rep. Lamar S. Smith (R-Tex.), the driving force behind the new law. "We still have the hardship provision, but now it will be enforced as it was originally intended, so people won't use a humanitarian gesture in the law as a loophole to never leave."

The law also places stricter limits on applying for political asylum, whether the immigrant has just arrived at a U.S. airport or has been living here for some time. As of Tuesday, asylum seekers will have fewer chances to make the case that they fear persecution or torture if they go home, and they will have less time to file their claims.

Finally, the new law attempts to ensure that legal immigrants will not end up on welfare after being brought here by their families. Starting next month, a citizen or legal resident who sponsors a relative will have to prove that he or she can support that person at 125 percent of the poverty level, which is $22,000 for a family of four.

In recent months, thousands of undocumented immigrants have rushed to legalize their status under the current law. Some, trying to win permanent residency, have applied for political asylum or hastily married a U.S. citizen. Others have turned themselves in for deportation, hoping to receive more lenient treatment.

Technically, according to the INS, illegal immigrants who receive a deportation notice before Tuesday can have their hardship claims judged under the old law. Many judges, however, are expected to follow the new guidelines, according to immigration lawyers, and some judges have postponed hearings until the new law takes effect.

The INS warned last week at a news conference that taking steps to become legal before Tuesday "provides no advantage" to applicants, who have until Sept. 30 to adjust their immigration status. But the sooner an immigrant takes action to become legal, the sooner the case will work its way through the crowded immigration courts.

Eldar Brizuela turned herself in several months ago in hopes of winning a waiver from deportation. She argued that it would be a great hardship for her daughter, a U.S. citizen, to move to Peru because she would have to give up her scholarship to an exclusive parochial school, learn Spanish from scratch and lose all contact with her father, whom she has seen periodically since her parents divorced.

"I can't imagine taking Roussy back there after all these years," said Brizuela, frowning as she polished knickknacks in a stately Northwest Washington home. "Here she is building a future. She loves her ballet and soccer, and the teachers tell me she is very good at math. In Peru, what could I earn? How could I give her any kind of life?"

Under the old immigration guidelines, a sympathetic judge might have ruled in Brizuela's favor. But by July, when her hearing is scheduled, the stricter standards will be in place. If Roussy suffered from a serious illness such as a congenital heart ailment, Brizuela might still be allowed to stay under the new rules. But INS officials say the disruption of schooling or family ties alone will not be sufficient reason to let illegal immigrants remain.

Immigration judges will still give some weight to economic factors, such as whether the person facing deportation is the only source of financial support for a child who was born here. But exactly how the new guidelines will be interpreted in court, particularly the stricter definition of hardship, won't be known until judges begin ruling on individual cases.

Even if Brizuela does manage to qualify for a deportation waiver, she might not get one. Congress has limited the number of such reprieves to 4,000 a year, and there has been such a surge in applications in recent months that the 1996-97 ceiling already has been reached.

Like Brizuela, many other illegal immigrants are struggling to survive on part-time or other low-paying jobs with no benefits. Yet they say they dread having to go back to countries where living standards and wages are even worse.

Javier and Consuelo Martinez, a couple from rural Mexico with two small children, would do anything to stay in Woodbridge, where he works as a carpenter and the family shares a crowded house with relatives. Last winter, they applied for a waiver from deportation, but their case has been postponed repeatedly. Their lawyer fears they have virtually no chance of winning under the new law.

"I came here to work honorably, not to take charity," said Javier Martinez, 29, who was waiting in the lawyer's office with his wife, 25, who bounced a toddler on her lap. "In my village, there is no electricity, no running water. We would live in a tiny room with my parents. The schools are very poor. . . . I cannot bear to imagine it."

Of course, not all illegal immigrants are model residents. In Latino communities such as Langley Park, police have arrested a number of drug dealers who turned out to be in this country illegally. Last year, an INS national task force on gangs arrested 4,388 illegal immigrants, mostly from Mexico and Central America, including one Salvadoran gang member from the District who had been convicted of sexually assaulting a child.

Immigration authorities acknowledge that it would be difficult to find and deport several million immigrants, but they say they intend to target "criminal aliens" in particular. Under the new law, noncitizens who commit a wide variety of crimes, from shoplifting to murder, can be deported as "aggravated felons."

"Congress has passed a law, and we have to respond. But as a practical matter, we will continue to have our priorities," said one regional INS official who spoke on condition of anonymity. "That means you won't see any initial change in the enforcement of visa overstays, but you will see significant emphasis on going after criminal aliens and employers" who hire undocumented workers.

But proponents of the new law say the tougher restrictions should be applied to every undocumented immigrant, even those who work hard and pay taxes, to make up for years of bureaucratic drift and judicial leniency that rewarded foreigners who sneaked in ahead of those waiting in line abroad.

"The immigration service has become one big rubber-stamping agency, and our big fear is that they will continue to wink and nod at the problem," said Dan Stein, executive director of the Federation for American Immigration Reform. He called the legislative crackdown a "byproduct of years of mismanagement" at the INS and an effort to "shut the loopholes" pried open by immigration lawyers.

"An alien's ability to immigrate should be based on his willingness to obey our laws," Stein said.

As immigrant advocates see it, however, the new law is an exercise in mean-spiritedness. They say it sets out to eliminate every possible avenue for an undocumented foreigner to remain here while punishing severely those who fail to comply with regulations. In the name of systemic reform, they argue, Congress has forgotten that immigrants are human beings.

"This is zero tolerance," said Carol Wolchok, director of the American Bar Association's immigration program in Washington. Although the new rules allow for some hardship exceptions, "the law doesn't take into consideration any of the individual human circumstances that until now immigration judges have had some discretion to relieve," she said. "These are people with families, people related to American citizens, people who have felt persecuted in their countries."

The ax, according to immigrant rights groups, will fall most heavily on political asylum seekers those foreigners who arrive without permission at U.S. airports or borders and seek protection from war or repression. Until now, most were allowed to enter and stay until their cases were heard by an immigration judge.

But as of Tuesday, foreigners who try to enter the country with false documents or none at all can be sent back on the spot unless they convince an immigration officer that they have a "credible fear" of returning home. If they pass that hurdle, they must undergo a formal asylum hearing, while in custody, within 48 hours.

If an asylum seeker is already in the United States and does not ask for asylum within a year, the person will lose the right to apply. But immigration officials say they do not plan to start enforcing that provision of the law until April 1998.

Giselle, a shy, 29-year-old seamstress from Togo, recently sought help at the Ayuda Inc. legal aid clinic in Adams-Morgan. She told the lawyer in halting, whispered French that she had been arrested by soldiers in 1994 while passing out political pamphlets, kept in a cell for two weeks and raped repeatedly.

With the help of relatives, she said, she eventually fled to the United States on a six-month tourist visa but was too ashamed and frightened to explain to U.S. officials what had happened. Her visa expired months ago, and she has been hiding at a friend's house in Northeast Washington.

"I do not like to speak of what happened to me, but I cannot go back there. [Togo's] government is like a god that does whatever it wants with you," said Giselle, a plump woman in a parka who asked that her last name not be published. "I can do nothing in my condition, not even get a job at McDonald's. . . . [But] I would rather be in prison in this country than in mine."

If Ayuda files an asylum claim for her, there is a chance Giselle can win her case. But since she waited more than a year to come forward, she might, under the new law, be barred from applying at all. And since she is living here illegally, she could then be deported.

Refugee advocates are worried about low-level immigration officers suddenly having the power to act as judge and jury of a refugee's fate. But immigration officials say they have trained hundreds of agents to handle the new asylum process sensitively and to give people the benefit of the doubt. The new law, they argue, will protect bona fide refugees while weeding out thousands of fraudulent asylum claims.

"We take very seriously our responsibility to afford protection to people who are fleeing persecution and torture," said Paul Virtue, an executive associate commissioner of the INS. "We believe the new process affords enough checks and balances so that people don't fall through the cracks."

CONFUSED ABOUT THE NEW LAW?

Effective April 1, immigrants who are in the United States illegally must obtain a work permit or visa by Sept. 30 or have applied for permanent residency, political asylum or relief from deportation. Otherwise, if caught, they must leave the country and reapply for admission.