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Nevada Case Claims Unfair Enforcement of Immigration Law

14 Dec

RENO, Nev. — Jose Isabel Esparza laughs at the thought that his wife, a 65-year-old grandmother living on their meager farm outside Mexico City, might be smuggling people illegally into the United States.

But that’s the only reason U.S. immigration officials have provided in denying her entrance to the country since she acknowledged in 1994 that one of the three sons listed on her original visa application was really her grandson.

Esparza, 69, a naturalized U.S. citizen who works as a landscaper in Reno, is suing the U.S. State Department in search of a better explanation of why he’s been forced to live apart from his children and wife, Maria, for more than 20 years.

His lawsuit filed in federal court Nov. 30 challenges the rejection of his wife’s visa “for purportedly having engaged in alien smuggling.”

Naming Secretary of State John Kerry as the lead defendant, the lawsuit says the government has misapplied the Immigration and Nationality Act.

Because the law allows no administrative appeal, a court order is necessary for the Esparzas to be reunited, said Steve Brazelton, the couple’s Reno-based lawyer.

“Most people don’t realize a citizen can be separated from a spouse on a whim for life,” Brazelton said in an interview this week.

The lawsuit cites a widely divided U.S. Supreme Court ruling issued earlier this year in Kerry v. Din. The court supported immigration officials who similarly cited a section of law under the terrorism category when they refused to allow a man who worked in the then-Taliban-controlled Afghan government to join his wife in California.

Courts long have held that noncitizens have no constitutional right to seek an explanation under legal doctrine that gives the government broad power to deny visas. In the California case, Fauzia Din was trying to get around that legal barrier by asserting that she deserved to know the specific reason for the denial based on her marital rights.

The high court ruled 5-4 that the government satisfied due process when it notified Din’s husband that he was denied under the anti-terrorism ban. However, the justices split on what due process required.

Brazelton believes the ruling is ripe for revisiting given that only two other justices joined Chief Justice Antonia Scalia’s majority opinion in June. Two signed concurring opinions that took a different stance on degrees of due process, and four dissented.

“No one could argue that Kerry v. Din has left the law clear,” said Chuck Roth, director of litigation for the National Immigrant Justice Center in Chicago, which filed a friend-of-the-court brief in the Din case. He said Esparza’s claim points out the need for judicial oversight.

The Justice Department has no comment on the litigation pending before U.S. District Judge Robert Jones, said Natalie Collins, spokeswoman for the U.S. attorney’s office in Nevada.

The government’s initial filing is due Feb. 1. No trial date has been set.

Maria Esparza first submitted a visa application in 1994, accompanied by an official birth certificate listing her and her husband as the parents of Yazarit Erefert Esparza, who now is 22.

In December of that year, she had a face-to-face interview at the U.S. Consulate Office in Ciudad Juarez, Mexico. She acknowledged that she had made a mistake in stating he was their biological son. She explained they had raised Erefert as their son since he was born to their 18-year-old daughter and a father who didn’t want to assume responsibility.

Immigration officials denied her visa on that basis, but urged her to obtain a hardship waiver pardoning the earlier misrepresentation, which she did.

But in 1995, U.S. officials rejected her again, with the only explanation being a citation of the federal code section “which punishes alien smuggling,” Brazelton said.

The Esparzas describe themselves as a simple family, farmers who raise corn, beans and chilies on about 17 acres in Cuauhtemoc.

“The most important thing in life for them is to be together as a family,” Brazelton said. “They don’t have any other aspirations.”

Esparza typically returns to Mexico for three winter months when he’s not needed at his landscaping job.

“The hardest part is not being together,” he told The Associated Press through his lawyer during a conference call from Mexico this week.

The family shouldn’t be punished for an innocent misstatement, Roth said.

“Even if it was fraud, which seems itself a little doubtful, it wasn’t alien smuggling in any normal sense of the word,” Roth said. “Yet according to an official at the U.S. consulate in Mexico, that act bars her forever from coming to the United States.”