Immigration 101

Becoming a legal immigrant is more complicated than you might think

The young woman sitting at a kitchen table with her father looks like any other Arizona teenager. Her hair is pulled back in a ponytail, and she's wearing jeans and a T-shirt emblazoned with a large silver peace sign.

Moments ago she was running around her family's house in slippers being chased by a little black puppy her family got her—a perfect distraction from her family's worries that her father faces deportation back to Mexico, where the family came from more than 14 years ago.

At the request of the family's attorney, the Tucson Weekly will not identify her or her father or mother. The family is undocumented, in the country illegally. But this 18-year-old wants you to know a few things about her. She wants you to know that she works extra hard to be a good person. She obeys the law, works hard in school and cares about her community. She is in almost every way a model U.S. citizen.

"I've always had to work harder than most of the other kids I know, kids who have their papers, kids who are here legally and always getting into trouble," she explains.

She entered the United States when she was three years old. Now she plays a bit of a waiting game, hoping for the passage of the Dream Act legislation, which would allow young adults who entered the U.S. illegally as young children to stay in the country and be able to eventually apply for citizenship.

"We've been here for 14 years. My father came here—jumped over the fence. My brother and I came here in a car with friends, and my mother came over in a different car," she says with just a slight accent.

"We've been here most of my life. I don't remember anything about Mexico."

Part of the waiting game for her also centers on her father, who was apprehended in early July during a traffic stop and spent three weeks in detention while his family figured out the process to post bond and have him released.

Eventually, her father may face deportation proceedings, although she says an attorney is working with the family to help him avoid deportation or at least slow the process to allow him to continue staying with his family as long as possible.

Her father says he was going to work in a truck with two other people for a job he had doing drywall. He was driving in a construction zone that changed the speed limit abruptly to 25 miles per hour and he wasn't able to slow down fast enough. The police officer who stopped him gave him a ticket for speeding and another ticket for a problem with the car and then another for an expired drivers' license. The cop also asked the other two people in the car for their identification and asked about their legal status.

"The (SB 1070) law hadn't (taken effect) yet, but the police asked if they were Mexican. They didn't have any ID. At that instant my dad showed them a G-28 paper that indicates he has an attorney representing him. I think it's what eventually helped us get him released on bond."

She also thinks what helped her father was the information she has learned being involved in local immigration organizations, such as Tierra Y Libertad. Through Tierra, she says she's learned what to do if she's stopped and asked about immigration status. She taught this to her parents and other members of the community. Her father followed her advice, while the two men with him did not.

When the Border Patrol showed up, an officer asked all the men to sign a document regarding their legal status, but her father didn't sign anything and only presented a copy of the G-28 form. The two men with him signed the forms and went through immediate deportation proceedings. Her father went to detention in Florence and because there wasn't enough room he was transferred to a facility in Pinal County, where he waited almost a month before he finally saw a judge.

His daughter says it was difficult because they knew he had been arrested, but when they called Border Patrol they were told his name wasn't in the system. It took a long time to figure out where he was and get his proper identification number so an attorney could begin working on his case.

Her father tells her that the best thing to do right now isn't to worry, but continue to work, go to school and move forward. She takes that advice to heart, as he took her advice on getting stopped by police.

"But don't get me wrong, when this happened, when I was out of this house people saw me as a strong person, confident and getting out there, but when I got home I would fall apart. I cried almost every night," she says.

"It is hard, and at the same time you have to suck it up and continue. My dad is a really strong person. 'You shouldn't worry. If it is going to happen, we have to continue our lives.' I'm going to use this experience to help people out. I want to tell them what I know because it is a really hard situation to be in. Be prepared."

Rachel Wilson, a Tucson immigration attorney who represented the father when he was first detained, says the man and his 18-year-old daughter are an example of why most perceptions of the current immigration process are false.

"Out there, there is this perception that there is a process you can easily go through to become legal, but let's say you're Mexican as an example, since most of the immigrants in Tucson are from Mexico. You decide you want to move to the U.S. for economic opportunity, but if you don't have any family members here ... that will sponsor a visa for you, there is no way for them to come legally to the U.S."

The U.S. immigration process can be frustrating for her and her clients, as well as the dozens of people who walk into her office seeking help only to be told that there is nothing she can do because of the way the law is set up and how the individual arrived in the country.

If a person wants a work visa in the U.S., and eventually to become a citizen, it's easier if they have a relative in the country who has legal status and can file a petition on their behalf. In those instances there are lines of people waiting—a wait that can go from a period of a few years to sometimes almost a decade.

"If you have an immediate relative who lives in the United States that is your spouse or a child over 21, then you can apply for a visa relatively quickly. It has to be your immediate relative and that person has to be a citizen. So then let's say you have a spouse who is a legal permanent resident; then you have to get in line and wait probably three or four years. Or you go all the way down to the farthest relative away who can invite a person in, who is a brother or sister who is a citizen, and that line for Mexican citizens is long. There are different lines based on what country you are from. There are some countries that have extra long lines because the United States has determined that there are too many people from that country already," Wilson explains.

Wilson sits at her computer scrolling through the U.S. State Department website that has all the immigration status information, including what's called the visa bulletin, a section that immigration attorneys and immigrants often check to find out when their waiting period is going to end.

On the bulletin posted for September 2010 ( is an explanation of the different visa categories—employment-based visas and family-based visas are all based on specific numbers of visas allotted each year for each category and five countries that have a specific visa quota. Mexico is included in that list, as well as China (mainland born), India, the Dominican Republic and the Philippines.

Every category also has a limit to the number of visas that can be issued, but what's more troubling for Wilson and other immigration attorneys in Tucson isn't really the limit on the number of visas, but the backlog that prevents immigration from happening in a timely manner.

Mexico happens to be the most backlogged of all the countries on the bulletin. For example, next month the State Department will look at petitions of brothers and sisters of adult citizens that were filed in January 1994, but if you are from China, they are going to be getting to petitions filed in October 2001.

"It's really complicated. When they are talking about the preferences they are talking about the degree to the relationship you have and what preference you are in the visa system. So then let's say you're Mexican and you have a brother or sister in the United States who petitions for you. Here we are in 2010, and they are processing petitions that were filed in 1994. So that's a wait of 16 years," Wilson says.

Rather than wait, many people come over illegally because the system can be daunting and complicated. For example, Wilson says if someone filed paperwork for a relative before April 30, 2001, and they come here illegally and don't get caught before their visa comes up, they can get a green card. "If, however, your relative filed an application for you after 2001, if you stay here, even if you don't get caught until your visa comes up, you can't get a green card because you made an illegal entry."

The 2001 cutoff comes from 1996 immigration reforms that the U.S. Congress kept renewing and grandfathering, but stopped in 2001—six months before Sept. 11. The father she helped with the 18-year-old daughter who is also here illegally is also an example of the backlog problem. His U.S. citizen brother filed a petition for him long before 2001, but it will probably be another six years before he finally gets a green card.

"It took us three weeks to get him out of detention, and as far as I can tell, he has no relief from deportation except to leave voluntarily, and then in six years when his visa comes up he'll have to apply for permission to enter ... which at this point I don't know if he can do," Wilson says.

Is the immigration system and backlog like a bureaucratic mess from a scene in the movie Brazil?

"Oh yes," Wilson answers. "Some judges have compared it to the tax code, and it's just as complicated and its crazy and it doesn't make any sense. Like for example, if you are an asylum seeker and you present yourself at the border and say, 'I'm seeking asylum,' they will immediately take you to detention, because that person is what is called an arriving alien. Arriving aliens are subject to mandatory detention and can't get bond. There is no provision for bond. But if you cross the border illegally and are apprehended somewhere inside the border, then you're not considered an arriving alien and are eligible for bond. Does that make any sense?"

Wilson says the system is so frustrating because it often goes against all the values that guided her to law school to become an attorney.

"Representing people on a one-by-one basis, it is hard to make any real change in the system; it's more like just trying to shepherd people through it. I went into law school to fight the man, but I'm not fighting the man, I'm fighting a bureaucracy," Wilson says.

"I've found that a lot of the people who work in the immigration service don't even want to enforce the law this way, and don't want the rules to be like this, but they are. And a lot of times it's not even the law that gets in the way; a lot of times it's just the bureaucracy. For example, let's say the law is on your side. You have the correct relationship with a U.S. citizen ... you can file your paperwork, and it gets sent back to you because of some clerical error. It doesn't get resolved right away. Meanwhile that person doesn't have authorization to work and have the documents they need to get a job, even though it's just a little clerical error. ... They may not be able to work for three to six months."

If anything does work in the system it is deportation. Wilson says people who argue that the government isn't doing its job and deporting people are wrong. "It's a flat-out lie. ... The government is deporting people left and right, and immigration courts are backed up two or three years in deportation hearings. The detention centers are full of people, and Immigration has to rent out space in other facilities. For example, everyone is scattered now between the detention center in Eloy and the detention center in Florence, and the Pinal County Jail and the Central Detention Center, and women are sometimes sent out to (the Goodyear prison) Perryville."

"What the government isn't good at is processing people's (applications)—people who have a right to be here, people who have the ability to get their green card."

Wilson says this is due to an inefficient system that isn't funded properly and is now a hot potato for any politician who suggests more funding for immigration services. Right now the only way immigration services are funded is through the collection of fees. People who are eligible for immigration have to pay $1,010 for a green card, and a citizenship application costs $675.

"I think that people who are here and have been here for a long time need to have a way to come out of the shadows and work legally," Wilson says.

Another lie Wilson often hears is that people who hire illegal workers pay them legal wages.

"Undocumented workers are coming here working for less than a legal wage, which in turn causes more businesses to want to hire more undocumented people because they can get away with paying them less than the legal wage. In my view of it, we don't have as much of an immigration problem so much as we have a labor problem. We have lax enforcement of our laws and if you go to those legislators in Phoenix and talk about law enforcement, 'What part of illegal don't you understand? Tell me, Senator (Russell) Pearce, about the employers who pay less than the legal wage. Why aren't you cracking down on employers who pay less than the legal wage?'" Wilson asks.

"If we were to enforce our labor laws, there would be less incentive to come here because employers would have to pay the same to everybody regardless of documentation—then there would be no incentive to hire anyone undocumented. At the same time, if we had fewer undocumented people, gave people a chance to get their documentation in some fashion, that would cut down on the exploitation as well."

Immigration, Wilson says, is a straw man that keeps people from focusing on the real problems. If people are worried about crime, she says that there are already many laws against crimes. "Immigration is just a handy scapegoat for all these other problems, so going after immigration doesn't solve any of those problems."

Real immigration reform was bantered about in the past during a different economic and political climate, even by the likes of U.S. Sen. John McCain, who pushed for reform legislation with the late Sen. Ted Kennedy. Now, if you want a job in politics, it's best to keep reform off the table.

Immigration attorney Maurice "Mo" Goldman says he wonders if Kennedy were still alive if he'd sit McCain down and persuade him to take up reform again. But real comprehensive immigration reform isn't about creating a guest-worker program and calling it a day.

"People would come here for five years, but not stay here and have no path for a green card," Goldman says. "That does not make sense to me. The employer isn't going to want them to go and will have grown attached to individuals and the individuals plant roots here and have children going to school here. I know there will be checks making sure people will have to leave, but we will be in the same boat we are in now with a bunch of people who don't want to leave."

Instead, he says, we have to make it easier for people to get their visas, and that will ultimately help benefit the U.S. It puts into practice the philosophy that comes from a country built by immigrants. The argument that other countries, including Mexico, treat their immigrants differently and wouldn't put up with the problem the U.S. does is also ridiculous, according to Goldman.

"First, this country was really built by immigrants. The U.S. didn't really have an identity until people were coming across the world. Sometimes they were brought here and enslaved, but our country has flourished because of our acceptance of others in this country. A lot of people come here and do great things," he says.

Rather than focus on those great things, Goldman says in the past decade people have focused on the bad because of Sept. 11. The argument becomes about security, but most statistics he's seen have shown that terrorists enter legally from other areas, but not Mexico.

Goldman thinks that rather than using immigrants to distract us from the country's real problems, people should read a study by Raúl Hinojosa-Ojeda, a UCLA associate professor of Chicano and Chicana studies, who determined that immigration benefits the economy.

According to Hinojosa-Ojeda's report (, comprehensive immigration reform would increase the country's gross domestic product by $1.5 trillion over 10 years. If the country continues on the same path with detention and deportations, it will change the GDP to negative $2.6 trillion.

Besides the economics of immigration, Goldman says we need to consider that as a society we are allowing families to be torn apart and destroying people's lives; that in itself is un-American.

"As Americans we are a country that opens our arms to people and allows them to pay for their faults. People have to pay a fine or be pardoned for different reasons. We are a forgiving country, but lately not when it comes to immigration," Goldman says.

For young people who came into the country illegally as infants or toddlers and are now in high school or fresh out of college trying to get jobs, it is an especially unfair system that needs to be changed with legislation like the Dream Act, Goldman says.

"(They) just want to go to college to better themselves and our society. They don't want to go out and commit crimes. They want to go out and be nurses and doctors. We need that. We need people to go out and be nurses, we need people who are going to join the military. Our military is thin and needs to be increased exponentially," Goldman says.

"I wonder what guys like Jesse Kelly or Jonathan Paton would say if you proposed that to them. Being military guys, how do they argue against that? ... They'd probably say it would benefit the parents eventually, or we're going to allow a law-breaker to receive some sort of benefit. But I don't think that kind of argument is justified when you look at the full picture."

Sometimes the only way to sway people who are against immigration reform, or who argue based on myths rather than fact, is for them to personally experience the immigration system. When Goldman worked as an attorney in New York, where there is a more varied population of immigrants entering legally and illegally, he found it interesting that people who were typically conservative would change their minds when it involved a nanny or someone else who worked for them.

"Then they finally seemed to get it," he says.

Jennifer Allen, executive director of Border Action Network, an immigration advocacy and education organization that supports immigration reform, says she thinks lawyers have it the most difficult because their job is to work through a system that doesn't have a lot of options.

"In my field at least I get to work with people, and sometimes we win—well, sort of," Allen says.

Goldman serves as chair of the Border Action Network board. Allen says she has seen him provide services pro bono, services for which, she says, many in the community are most grateful.

But besides the legal issues, Allen says her organization also teaches immigrants how to develop political skills to be leaders in their community and in the state in order to reform immigration policies.

"Clearly many of us are frustrated and challenged by the existing system," Allen says. But she says immigrants get involved with the organization and get over their fears because they realize there is "an enormous disconnect about who immigrants are, their role in this country, and what they want. People are willing to step up and say 'Whoa, none of that is true. Here's who I am, here's who we really are. We want the same things that every other family wants ... we want to participate and be part of this country.'"

As it is for Wilson and Goldman, the misinformation regarding undocumented immigrants is troubling for Allen. She often travels to Phoenix to keep tabs on the Legislature and any bills that address immigration. Usually the vitriolic rhetoric comes from Senator Russell Pearce, along with members of the Phoenix Law Enforcement Association. Their presentation equates immigrants with murderers and crime.

"This whole myth of criminality is constantly propagated even though criminologists all over the country over and over again say the opposite, which is why cops are often on the same side as immigrant activists, because they have found that a safe community has a high immigrant population," Allen says.

Immigrant communities often go to great lengths to be law-abiding and respectful. Pearce and other politicians use myths to justify laws that are "meant to address some perceived problem that is not actually the problem," she says.

Also at issue is how politicians take separate problems—people who cross over illegally, national security, and criminal activity—and blur them together to create greater problems to support legislation like SB 1070. Militarizing the border isn't the way to deal with these issues, Allen says, but separating the issues and creating policy responses for each problem is.

Ultimately, what will make it better for everyone and prevent politicians from dehumanizing and criminalizing immigrants through false information is immigration reform, Allen says.

What a relief it would be for immigrant communities and the lawyers who represent them. Wilson says she knows that when someone is caught and faces deportation there is little she can do to help them, even if they have U.S.-born children they might have to leave behind.

"There are people who have been living here 10, 20 to 30 years and have entire families here. There's nothing I can do for them," Wilson says. "They can ask to remain, but to win that case they have to show that they have U.S. citizen children or spouse and that their family will suffer extreme and unusual hardship if they are deported."

However, separation from family or loss of that person's income is not enough. If the child or wife is disabled, that could actually help.

"So I'm constantly asking about that—'Does your child have a learning disability? Does your child have all their limbs?' I'm just hoping for anything," Wilson says.

But despite the challenges, once in a while there are a few miracles. Goldman points to a case that occurred in March 2008 when the state raided a Tucson Panda Express restaurant and changed the lives of 11 workers (See "The Panda Express 11," Nov. 6, 2008), separating them from their families and infant children.

Included among the 11 people was Omar Espino-Lara, who was working as a Panda Express assistant manager when the raid occurred. Now 27, Espino-Lara first came to Tucson at the age of nine. After two years, he says his family moved back to Guanajuato, but returned to Tucson permanently when he was 14.

He was a soccer star at Sunnyside High School and was working at Panda Express because he had to support his family after his father got hurt in an accident, so he had to drop out of Pima Community College.

"I'm back at Pima," Espino-Lara says. "I'm trying to finish my certification for an A.A. in accounting, and then transfer to the UA."

After the Panda Express raid, he says he went to the detention center in Florence first, and then spent five months at the center in Eloy. He had applied for a visa in 2000 that would allow him to get his green card, but he had to wait five years. Then the raid.

"When I was taken to detention I didn't think I'd be able to stay. I thought I was headed back to Mexico, even though I haven't been there since I was 14," Espino-Lara says. "After I got out it was stressful. I had to go to court. I didn't know what was going to happen. Was this the last time I was going to see my family? Was the judge going to send me back to Mexico? Instead, the judge allowed me to prove I wasn't a dangerous person."

His permanent visa was finally approved on July 26, 2010. Still, even with a permanent visa, SB 1070 has taken a toll on his family, including all five of his U.S.-born children.

"Even though my wife is a U.S. citizen and I have this visa, my kids are scared. I like to play the radio in the car in Spanish, but my kids would yell at me to turn it down. 'I don't want the cop to stop us,' my daughter told me. I told her nothing can happen to them. 'You're citizens.' 'Yeah, but you're not. I'm scared for you,'" he says they told him.

Some of his children's friends didn't come back to school this year and left Arizona because of the new law, and their neighborhood has changed, too.

"Yeah, even though I have (a permanent visa) I still feel like a target, since it is based on how you look. But you keep going. I'm almost done with school. I've been working at the same time and doing this kind of slow, but I have most of the credits I need."

Wilson's 18-year-old client, whom the Weekly agreed to not identify, is trying to get back on track with her application to Pima. Her plan to start college this fall was derailed when her father was put in detention and she spent most of her time rallying the community to help her get him released.

She attended all of her elementary school years at Hollinger Elementary, middle school at Wakefield, and graduated from Pueblo Magnet High School.

"This set me back, but I had to help him, and I felt like I was under pressure because I was the middle man. All the information had to go through me," she says.

She's getting ready to take the assessment test and take classes this spring. She wants to attend a four-year college and major in agriculture and Latin American studies. She says she's also counting on the Dream Act.

"I cannot become a U.S. citizen with my parents; I have to find a different way. My way is going to be the Dream Act," she says.

"After this happened to my father and after SB 1070, I asked my parents if we should leave. They said, 'Why? This is our home and we are going to continue to live here.' Even when my father was in detention, my mother kept working (as a house cleaner). We respect the laws. We respect Border Patrol. We respect the police. We don't do anything stupid. We follow the rules just like any other person."