Borderline case

An illegal immigrant mother battles against bureaucracy to stay near her ailing daughter

Five-year-old Diana Garcia can't sit up, eat, or do much of anything by herself. Confined to a wheelchair, she eats formula through a little tube in her stomach. Neurologically, she's at the level of a newborn and will likely stay that way the rest of her life, her doctor says.

Born three months premature weighing less than two pounds, Diana has fought for survival since birth. The fluids that protect her brain could not circulate, and she became partially paralyzed on her right side. The resulting cerebral palsy caused severe damage to her nerves and muscles. She suffers from convulsions and sometimes hits herself.

Five years and two major surgeries later, Diana has valves on both sides of her head that keep the fluids flowing so she can survive. She lies on her back in the Garcias' sparsely furnished living room in southeast Fort Worth, mumbling and gurgling while a visiting nurse coos and tends to her. As the woman helps the little girl move her shriveled arms, parents Jorge and Maricela look on.

Jorge, a 30-year-old permanent U.S. resident, works for a local dry cleaning company. He lets his wife do most of the talking. Maricela, a 24-year-old illegal immigrant from Zacatecas, Mexico, flashes a wise but tired grin as she talks about her daughter's life.

Every day for the past five years, Maricela's and Diana's lives have been bound tightly together. Maricela gets up every morning, pulls her 33-pound daughter out of bed, and prepares her for special education classes at a nearby public elementary school. She bathes and feeds her, dresses her, and secures her in the wheelchair. She's the single most important person in Diana's life.

But recent changes to U.S. immigration laws mean that Maricela Garcia will soon be forced to return to Mexico and leave behind her daughter, a U.S. citizen. Congress voted earlier this year that applicants seeking permanent residency in the United States must return to their home countries while their immigration paperwork inches along. Maricela applied several years ago--in May 1993--but the INS is still working on applications from 1992.

Right now, Maricela is in a sort of bureaucratic no man's land, halfway to U.S. citizenship. She's not legal, but it's almost certain that her residency application will be approved once the INS gets around to it.

Come September, however, she won't have any right to remain in this country while the INS plods along. Up until this year, an applicant such as Maricela would have been able to avoid leaving through a process called "suspension of deportation." If she could prove that she'd lived here seven years, that she possessed good moral character, and that her departure would cause extreme hardship to her or her family, she could remain in the United States while waiting for her paperwork to go through.

But Congress has upped the ante now, requiring 10 years of residence--as well as "exceptional and extremely unusual hardship" to either Jorge or Diana if Maricela were forced to leave. There's only one problem: Nobody seems to know what "extremely unusual hardship" consists of. The phrase hasn't been defined, according to George Rodriguez, a local immigration attorney whom Maricela has contacted. "It's a discretionary decision," he says.

Maricela hopes she can somehow stay under the hardship provision. She's only lived here for seven years, but her departure would definitely throw the Garcia family into chaos. "I don't know what we're going to do," she says, staring wistfully at her daughter.

But Rodriguez and his law partner and wife, Michelle Saenz-Rodriguez, are not optimistic about her chances. "Technically, under the law, there are no avenues" for Maricela to delay deportation, Saenz-Rodriguez says. "They're advising us not to advise our clients," she adds, "because we just don't know [how the law will affect people]. It's created havoc."

Maricela's dilemma comes at a time when precedents are being established, and judges' decisions are paving the way for future interpretations of immigration law. But the Rodriguezes are concerned about people caught in the system right now. "What about everybody that gets caught in between--who had to be separated from their wives and their kids because we don't know and immigration doesn't know and the judges don't know?" Rodriguez asks.

Maricela's time is up in September. That's when anyone who's been here illegally since April 1, 1997 must return to his home country--or be deported and banned from the United States for three years. The longer you remain illegally after April 1, the stiffer the penalty gets.

The penalties only apply, of course, if you get caught.
But that won't be hard. All U.S., state, and local agencies are required by law to report any suspected illegal aliens to the INS. That means that Maricela will have to think twice about going to a public hospital if she's injured, because the hospital is supposed to report her.

(An INS spokesman says, however, that no local hospital has turned in any aliens yet. "Even if they did send us information, it's not real likely that we'll go sit in the waiting room" to nab an illegal, he adds.)

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