Over the years, word had spread in his Jupiter neighborhood. If you want a driver's license, go to a notario. Need a work permit? The notario can arrange it.
So Edgar, undocumented and eager for a pass out of the fringes of the law, walked into a notary public's office and plunked down more than $500.
The Mexican native obtained the documents — along with a deportation order.
Attorneys say hundreds of undocumented immigrants in Florida and around the country are victims of notaries who engage in the unlicensed practice of law by providing legal advice and filing immigration-related documentation on their behalf — work a notary is not authorized to do.
Asylum applicants are eligible for work permits and driver's licenses while their cases are pending. But a frivolous asylum application filed in order to obtain the license can result in a deportation order, according to several attorneys familiar with the practice.
"There's a lot of confusion as to what these companies can and can't do," said Janet Morgan, the bar counsel in the Florida Bar Association's Fort Lauderdale office who is investigating complaints filed against notaries. "There can be terrible results for people who go in and rely on a non-lawyer to prepare the right application for them."
Edgar, 27, said he went to Lake Worth notary Fabian Sosa in 2006. He said he signed documentation for what he was told was a temporary work permit and a driver's license. With a receipt from the transaction, he was able to get a license at a Department of Motor Vehicles office.
In fact, Edgar and his attorney said, the receipt was for an asylum application. In July 2007, Edgar was ordered before an immigration judge who told him his request for asylum was denied. He was dumbfounded.
"I never asked for asylum," said Edgar, who last name is being withheld because he is still trying to obtain legal status. "I know as a Mexican I'm not eligible."
Sosa declined to comment on Edgar's case.
Notarios, or notaries, have broad legal powers in Mexico and throughout Latin America, and immigrants often assume their role is similar here. But in the U.S., notaries are limited to taking oaths, authenticating certain documents and acting largely as a typing service. Officials say that hasn't stopped many notaries from advertising legal services in heavily immigrant neighborhoods in order to draw desperate clients to their storefront operations. The unlicensed practice of law is a third-degree felony in Florida.
"Notaries are seizing upon fears and rumors of raids, pickups and deportations," said Linda Osberg-Braun, president of the South Florida chapter of the American Immigration Lawyers Association. "They often represent themselves to be lawyers and sell hope where hope does not exist."
Osberg-Braun said the association would soon launch a Spanish-language radio campaign in South Florida to help educate immigrants about notary fraud.
"These people are getting rich on other people's pain. People need better information so they don't keep falling into these traps, " said Edgar.
The Florida Bar Association opened 659 unlicensed practice of law complaints, 163 of them immigration-related, in the 2007-2008 fiscal year, Morgan said. Thirty-seven complaints have been filed in 2008 against Sosa, owner of Las Americas Service on Dixie Highway in Lake Worth, she said. The complaints remain open. Spokesperson Sandi Copes said the Florida Attorney General's office also is investigating Sosa for practicing law without a license.
Sosa, who opened his business 18 years ago, denied the allegations that he had engaged in the unlicensed practice of law.
He said immigration attorneys often blame notaries as a tactic to get a stay of deportation from a judge. He said his agency simply provided a translation service and at no point offered legal advice. When he learned that some former clients who'd landed before an immigration judge were blaming him, he began asking clients to sign a waiver warning them false testimonials could lead to deportation. He said he no longer provides any translations for asylum claims.
West Palm Beach immigration attorney Aileen Josephs was able to halt Edgar's deportation, but said she knows of dozens of other cases in Palm Beach County that ended with forced removals and devastated families.
"The federal government is going after these immigrants with the pretense that they are fugitives of the law. But these fugitives are victims of people who have abused their vulnerability," Josephs said.
When asked about the allegations made by Josephs and Edgar, Sosa said he did not know the attorney and that he would not comment further. Josephs said she had spoken with Sosa about the allegations, but had not filed a complaint.
Aura, 26, a Guatemalan native who lives in Jupiter, regrets the day her partner consulted a notario. (It was not Sosa.)
Jose Antonio Melgar, 28, was deported to his native Honduras three months ago after the asylum claim a notary filed on his behalf was denied and authorities flagged him. He left behind two children, including a 2-year-old son who often refuses to sleep or eat since witnessing his father's arrest.
"You fill out a form and then this happens," Aura said. "Nobody warns you."
**Story Link
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
8/12/08
8/8/08
Court Rebuffs Bid to Speed Citizenships to Allow Voting, By Mark Hamblett (NY Law Journal)
An attempt to force the FBI and immigration officials to clear a huge backlog of citizenship applications by legal residents in time for election day was rejected yesterday by a federal judge.
Southern District Judge Lawrence M. McKenna refused to grant a preliminary injunction sought by the Puerto Rican Legal Defense and Education Fund and the New York Legal Assistance Group.
In an action that claimed the FBI takes far too long to process the name checks that are a prerequisite to full citizenship, the groups also sought to certify two classes of tens of thousands of legal residents who want to vote in November.
Announcing his decision dismissing all claims from the bench, Judge McKenna said that Congress requires the FBI to conduct a full criminal background check for each applicant for citizenship but, "[i]t does not require it to do so in some specific period of time."
In Milanes v. Chertoff, 08 Civ. 2354, the plaintiffs said delays of up to two to three years impose other hardships on legal residents in addition to preventing them from voting, including leaving them ineligible for important benefits and jobs and restrictions on travel.
Cesar A. Perales, the president and general counsel of the Legal Defense and Education Fund, said after the decision that the loss was a tough one. But he also said the groups would continue to press their case with an appeal as he praised the name plaintiffs in the case for their courage.
"Our clients were told by many of their friends not to bring this action because it would make it less possible for them to become citizens themselves," Mr. Perales said. "We are very, very disappointed with the decision today, but we still believe we have a very good case."
Milanes was brought under the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA) as well as the Constitution's Due Process Clause.
The groups claimed a general failure to process the applications within a reasonable time in violation of the APA 5 U.S.C. §555(b). Under the INA §336(b), they claimed, the government was failing to process their applications within 120 days of their initial examination.
The FBI is required to conduct a background check on every applicant for citizenship and until the bureau checks fingerprints and a database for an administrative or criminal record, the U.S. Citizenship and Immigration Service (USCIS) will not schedule an examination of the applicant.
The plaintiffs sought to certify two classes. The first was for all permanent residents who have submitted or will submit applications for naturalization with the Citizenship and Immigration Service's New York office and whose applications have not been or will not be adjudicated within 180 days. The second was a subclass of people who have not been or will not be adjudicated within 120 days of their initial examination.
In all, the plaintiffs submitted five claims for relief and Judge McKenna rejected each one.
The government had argued in its motion to dismiss that Congress has plenary power in this area and has chosen not to impose the sixth-month deadline sought by the plaintiffs.
It would be one thing if the plaintiffs were suing to compel "discrete agency action," the government said, but instead they were seeking "a programmatic revision of USCIS's practices with respect to the statutory requirement that USCIS undertake a 'full criminal background check' and a 'personal investigation' of all naturalization applicants."
Judge McKenna agreed yesterday, saying, "The only agency action that can be compelled is action legally required."
The judge said the statutory requirement of a background check takes precedence over the regulation setting a time frame for processing applications.
Assistant U.S. Attorneys Robert William Yalen, Tomoko Onozawa and Kirti Vaidya Reddy said in their papers that the agency does not have a duty to act on applications before an FBI name check and "the FBI does not owe any duty to individuals whose name check it is running."
The government also argued that the plaintiffs' due process claim should be dismissed because "no constitutional liberty or property interest of plaintiffs has been denied."
Jane Greengold Stevens, the director of the Legal Assistance Group's special litigation unit, held out hope for an appeal to the U.S. Court of Appeals for the Second Circuit after yesterday's ruling.
"This decision is based on a technical legal issue that doesn't speak to the suffering" of people who have been waiting to become citizens, Ms. Stevens said. "The one thing in our favor is that [Judge McKenna] believes there is grounds for certifying a class" if the plaintiffs win on appeal.
Richard Slack, a partner at Weil Gotshal & Manges who worked on the case pro bono, said his firm was approached by the Legal Assistance Group and asked to offer its services.
He said the firm agreed to work on the case because "we learned that large numbers of legal immigrants . . . had been waiting, in some cases, for years" to have their applications processed.
**Story Link
Southern District Judge Lawrence M. McKenna refused to grant a preliminary injunction sought by the Puerto Rican Legal Defense and Education Fund and the New York Legal Assistance Group.
In an action that claimed the FBI takes far too long to process the name checks that are a prerequisite to full citizenship, the groups also sought to certify two classes of tens of thousands of legal residents who want to vote in November.
Announcing his decision dismissing all claims from the bench, Judge McKenna said that Congress requires the FBI to conduct a full criminal background check for each applicant for citizenship but, "[i]t does not require it to do so in some specific period of time."
In Milanes v. Chertoff, 08 Civ. 2354, the plaintiffs said delays of up to two to three years impose other hardships on legal residents in addition to preventing them from voting, including leaving them ineligible for important benefits and jobs and restrictions on travel.
Cesar A. Perales, the president and general counsel of the Legal Defense and Education Fund, said after the decision that the loss was a tough one. But he also said the groups would continue to press their case with an appeal as he praised the name plaintiffs in the case for their courage.
"Our clients were told by many of their friends not to bring this action because it would make it less possible for them to become citizens themselves," Mr. Perales said. "We are very, very disappointed with the decision today, but we still believe we have a very good case."
Milanes was brought under the Administrative Procedure Act (APA) and the Immigration and Nationality Act (INA) as well as the Constitution's Due Process Clause.
The groups claimed a general failure to process the applications within a reasonable time in violation of the APA 5 U.S.C. §555(b). Under the INA §336(b), they claimed, the government was failing to process their applications within 120 days of their initial examination.
The FBI is required to conduct a background check on every applicant for citizenship and until the bureau checks fingerprints and a database for an administrative or criminal record, the U.S. Citizenship and Immigration Service (USCIS) will not schedule an examination of the applicant.
The plaintiffs sought to certify two classes. The first was for all permanent residents who have submitted or will submit applications for naturalization with the Citizenship and Immigration Service's New York office and whose applications have not been or will not be adjudicated within 180 days. The second was a subclass of people who have not been or will not be adjudicated within 120 days of their initial examination.
In all, the plaintiffs submitted five claims for relief and Judge McKenna rejected each one.
The government had argued in its motion to dismiss that Congress has plenary power in this area and has chosen not to impose the sixth-month deadline sought by the plaintiffs.
It would be one thing if the plaintiffs were suing to compel "discrete agency action," the government said, but instead they were seeking "a programmatic revision of USCIS's practices with respect to the statutory requirement that USCIS undertake a 'full criminal background check' and a 'personal investigation' of all naturalization applicants."
Judge McKenna agreed yesterday, saying, "The only agency action that can be compelled is action legally required."
The judge said the statutory requirement of a background check takes precedence over the regulation setting a time frame for processing applications.
Assistant U.S. Attorneys Robert William Yalen, Tomoko Onozawa and Kirti Vaidya Reddy said in their papers that the agency does not have a duty to act on applications before an FBI name check and "the FBI does not owe any duty to individuals whose name check it is running."
The government also argued that the plaintiffs' due process claim should be dismissed because "no constitutional liberty or property interest of plaintiffs has been denied."
Jane Greengold Stevens, the director of the Legal Assistance Group's special litigation unit, held out hope for an appeal to the U.S. Court of Appeals for the Second Circuit after yesterday's ruling.
"This decision is based on a technical legal issue that doesn't speak to the suffering" of people who have been waiting to become citizens, Ms. Stevens said. "The one thing in our favor is that [Judge McKenna] believes there is grounds for certifying a class" if the plaintiffs win on appeal.
Richard Slack, a partner at Weil Gotshal & Manges who worked on the case pro bono, said his firm was approached by the Legal Assistance Group and asked to offer its services.
He said the firm agreed to work on the case because "we learned that large numbers of legal immigrants . . . had been waiting, in some cases, for years" to have their applications processed.
**Story Link
8/7/08
The Laws Cops Can’t Enforce, By George Gascón (NYT)
OUR next president faces a formidable task. He will be forced to deal with two difficult wars, an economic downturn, higher energy prices and a bankrupt federal immigration policy.
To some, immigration pales in comparison with the wars and the economy. But for others, especially police departments in border states like mine, it is all-consuming. The first priority of the next president should be legislation that addresses the legitimate concerns of both the people who believe our borders are out of control and those who want equal protection for everyone living in this country.
Immigration issues are tearing apart communities. Demagoguery and misinformation are shaping public opinion and in some cases public policy. In the absence of a clear federal policy on immigration, states and cities are enacting draconian and constitutionally questionable laws.
This patchwork of conflicting local immigration laws is creating an untenable situation for police officials who face demands to crack down on immigrants — demands that contradict policing practices that have led to significant declines in crime.
For police officials, refusing to carry out policies that may violate the Constitution can be career-threatening. Both sides in the immigration debate accuse police departments of misconduct in dealing with immigrants. In this politically charged environment, some chiefs are making decisions based on bad politics instead of sound policing. In many cases, police officers are making illegal arrests with the acquiescence and sometimes explicit approval of their superiors.
Here in Arizona, a wedge is being driven between the local police and some immigrant groups. Some law enforcement agencies are wasting limited resources in operations to appease the public’s thirst for action against illegal immigration regardless of the legal or social consequences.
America’s 500,000 police officers are sworn to enforce the law. But we are increasingly unable to do so. Those who want to restrict immigration criticize us for not arresting immigrants for entering the country illegally. Yet others rightly wonder how we can do our job if some residents are afraid to report crimes or otherwise cooperate with the police for fear of deportation.
Without a national immigration policy, a new culture of lawlessness will increasingly permeate our society. In cities, politicians will pressure police departments to reduce immigration by using racial profiling and harassment. At the same time, immigrants who fear that the police will help deport them will rely less on their local officers and instead give thugs control of their neighborhoods.
Many top law enforcement officials were part of the community policing revolution of the 1980s and ’90s. We have a deep concern for constitutional rights and social justice. We believe that effective policing requires residents, regardless of immigration status, to trust the police.
We are also students of the mistakes of our predecessors. Past police practices helped lead to the civil unrest of the 1960s, which tore our nation apart along racial and political lines. We do not want to repeat those mistakes.
If we become a nation in which the local police are the default enforcers of a failing federal immigration policy, the years of trust that police departments have built up in immigrant communities will vanish. Some minority groups may once again view police officers as armed instruments of government oppression.
A wink and a nod will no longer suffice as an immigration policy. Effective border control is a critical step. But so is ensuring that otherwise law-abiding undocumented immigrants have the same protections as everyone else in a modern, free society.
Presidential candidates need to specify the measures on immigration they would present to Congress after Inauguration Day. No doubt, the advisers to John McCain and Barack Obama are counseling them to be vague. That’s the wrong advice.
America’s police officers deserve thoughtful federal leadership so that we can continue doing our best to provide our country with the security that defines a civilized society.
George Gascón, a former assistant chief in the Los Angeles Police Department, is a lawyer and the chief of the police department in Mesa, Ariz.
**Story Link
To some, immigration pales in comparison with the wars and the economy. But for others, especially police departments in border states like mine, it is all-consuming. The first priority of the next president should be legislation that addresses the legitimate concerns of both the people who believe our borders are out of control and those who want equal protection for everyone living in this country.
Immigration issues are tearing apart communities. Demagoguery and misinformation are shaping public opinion and in some cases public policy. In the absence of a clear federal policy on immigration, states and cities are enacting draconian and constitutionally questionable laws.
This patchwork of conflicting local immigration laws is creating an untenable situation for police officials who face demands to crack down on immigrants — demands that contradict policing practices that have led to significant declines in crime.
For police officials, refusing to carry out policies that may violate the Constitution can be career-threatening. Both sides in the immigration debate accuse police departments of misconduct in dealing with immigrants. In this politically charged environment, some chiefs are making decisions based on bad politics instead of sound policing. In many cases, police officers are making illegal arrests with the acquiescence and sometimes explicit approval of their superiors.
Here in Arizona, a wedge is being driven between the local police and some immigrant groups. Some law enforcement agencies are wasting limited resources in operations to appease the public’s thirst for action against illegal immigration regardless of the legal or social consequences.
America’s 500,000 police officers are sworn to enforce the law. But we are increasingly unable to do so. Those who want to restrict immigration criticize us for not arresting immigrants for entering the country illegally. Yet others rightly wonder how we can do our job if some residents are afraid to report crimes or otherwise cooperate with the police for fear of deportation.
Without a national immigration policy, a new culture of lawlessness will increasingly permeate our society. In cities, politicians will pressure police departments to reduce immigration by using racial profiling and harassment. At the same time, immigrants who fear that the police will help deport them will rely less on their local officers and instead give thugs control of their neighborhoods.
Many top law enforcement officials were part of the community policing revolution of the 1980s and ’90s. We have a deep concern for constitutional rights and social justice. We believe that effective policing requires residents, regardless of immigration status, to trust the police.
We are also students of the mistakes of our predecessors. Past police practices helped lead to the civil unrest of the 1960s, which tore our nation apart along racial and political lines. We do not want to repeat those mistakes.
If we become a nation in which the local police are the default enforcers of a failing federal immigration policy, the years of trust that police departments have built up in immigrant communities will vanish. Some minority groups may once again view police officers as armed instruments of government oppression.
A wink and a nod will no longer suffice as an immigration policy. Effective border control is a critical step. But so is ensuring that otherwise law-abiding undocumented immigrants have the same protections as everyone else in a modern, free society.
Presidential candidates need to specify the measures on immigration they would present to Congress after Inauguration Day. No doubt, the advisers to John McCain and Barack Obama are counseling them to be vague. That’s the wrong advice.
America’s police officers deserve thoughtful federal leadership so that we can continue doing our best to provide our country with the security that defines a civilized society.
George Gascón, a former assistant chief in the Los Angeles Police Department, is a lawyer and the chief of the police department in Mesa, Ariz.
**Story Link
8/6/08
Push needed for immigration reform, By: Gebe Martinez (Politico)
The physical and emotional pain of dozens of immigrants and their children was palpable recently when a congressional delegation walked into a room at St. Bridget’s Catholic Church in Postville, Iowa.
The town still suffers almost three months after 389 immigrants were arrested at a local meat processing plant and then detained at a cattle exhibit hall. At this meeting with three members of the Congressional Hispanic Caucus, their stories of inhumane treatment at work and legal injustices after the arrests came tumbling out.
There was a 16-year-old who worked on the kill floor of the plant — he was under the legal age limit for the job — who labored 17-hour shifts, six days a week, without overtime. There was a man who had lost his hand. There were women who were sexually exploited if they wanted a shift change.
In May, hundreds of federal agents stormed into the Agriprocessors Inc. plant, rounded up workers like cattle and chuted them through a pre-scripted legal process that cut off their legal rights to defend themselves against unusually harsh felony “aggravated identity theft” charges. Families are separated and women are wearing electronic homing bracelets pending the conclusions of their cases.
After meeting with the immigrants, Rep. Luis V. Gutierrez (D-Ill.) had a question for presumptive Republican presidential nominee John McCain, the Arizona senator who once worked on Gutierrez’s comprehensive immigration reform plan.
“Is this his ‘enforcement only’ plan?” Gutierrez asked chidingly. “How many more years of this do we have to have before we have comprehensive [reform]? How many more Postvilles do we have to have?”
Of course, Gutierrez backs Democrat Barack Obama for president, but he also was disappointed last year when McCain stepped back from the broad immigration plan they had collaborated on and began insisting that “border security” must come first.
But the questions should be posed, not only to McCain, but to others who have failed to step up and lead.
Obama needs to be pressed on immediate immigration fixes, and so does the Democratic Congress, which has refused to take up a big reform package until next year at the earliest.
And do not forget President Bush, who once stood for the comprehensive immigration plan until it failed last year in the Senate. Now, as Bush’s lame duck presidency limps to an end, he has turned his back to Postville while reserving his compassion for oil companies.
It is highly unlikely that Bush will grant Gutierrez’s request for a moratorium on immigration raids until a better solution is in place.
“You know who is in charge now? The Gestapo agents at [the Department of] Homeland Security. They are in charge,” Gutierrez said. “I think it is election season, and they have decided it did not work for us one way [with comprehensive reform], so let’s try to exploit it politically another way” through harsh enforcement.
Enforcement only, without also figuring out how to legalize 12 million undocumented immigrants in the country or refining the rules for employers who hire illegal immigrants, is exactly what conservatives want in this election year.
The Center for Immigration Studies, which favors strict limits on legal and illegal immigration, recently concluded that, in addition to a sinking economy, “increased enforcement seems to have played a significant role” in reducing the illegal immigrant population over a nine-month period ending in May.
The accuracy of the center’s calculations were highly criticized by immigrant advocates, but the center stuck to its argument that “muscular enforcement” can “induce” illegal residents to return to their home countries.
Heeding the criticism that immigration enforcers have unnecessarily disrupted families, U.S. Immigration and Customs Enforcement is testing a 17-day program in five cities that asks 457,000 non-criminal illegal immigrants who ignored deportation orders to turn themselves in. Coordinating their departures with ICE will “ease their transition and minimize the impact of their removal on their loved ones,” the agency said.
Legal family members of the illegal immigrants are invited to leave the country as well.
The plan would be laughable if the issue were not so serious, said Frank Sharry, executive director of America’s Voice, which wants an overhaul of immigration laws that combines tougher enforcement with expanded visa programs and earned legalization.
“Call me crazy, but I doubt that [test program] sends the message to Latino voters that the Republican Party understands the complexity of this issue and supports practical solutions,” Sharry said, referring to the competition for the Latino vote in the November election.
Postville is the poster board for the broken immigration system.
The federal government’s chase of illegal immigrants at the meat plant disrupted a Labor Department probe into unfair work and wage practices by the owners. Critics have accused ICE of being more aggressive about prosecuting minor immigration violations than punishing employers.
Last week, the American Civil Liberties Union found a government “manual” given to lawyers assigned to defend the workers. The package included scripts for plea and sentencing hearings, which the ACLU said resulted in undermining the immigrants’ ability to understand the charges against them and receive full hearings.
Filled with fear, most of those arrested agreed to waive their rights, plead guilty to lesser charges and spend five months in prison before being deported. The alternative was to spend at least six months in jail while waiting for a trial, risk being sentenced to at least two years in prison, and still be deported.
Gutierrez likened the process to indicting a person for murder without any evidence. In this case, where many are claiming innocence of the identity theft charges, “we prosecuted the people we should be protecting. It corrupts our judicial system and it undermines our values.”
While Democrats plan to hold a congressional hearing in Postville next month, efforts also are underway on incremental measures to help legal immigrant workers and their employers.
Fixes to the E-Verify electronic employment verification system were approved by the House last week.
Rep. Mike Honda (D-Calif.) and Sen. Hillary Rodham Clinton (D-N.Y.) also proposed a new bill that would invest federal dollars in English literacy and civics programs for adults and school children and give a 20 percent tax credit to employers who provide English and GED instruction.
The point of the bipartisan-backed bill is to promote immigrants’ desires to integrate in American society rather than focus on “English-only” and other aspects of the immigration debate that fuel rancor, said Peter Zamora of the Mexican American Legal Defense and Educational Fund.
“There’s hot air fatigue. Members [of Congress] now recognize they were elected to get something done, not just fulminate about a class of people,” Zamora said.
Maybe. But nothing will be done before the November elections, and not soon enough for the people in Postville.
**Story Link
**Image Courtesy of Politico
8/4/08
Immigrants Facing Deportation by U.S. Hospitals, By Deborah Sontag (NYT)
High in the hills of Guatemala, shut inside the one-room house where he spends day and night on a twin bed beneath a seriously outdated calendar, Luis Alberto Jiménez has no idea of the legal battle that swirls around him in the lowlands of Florida.
Shooing away flies and beaming at the tiny, toothless elderly mother who is his sole caregiver, Mr. Jiménez, a knit cap pulled tightly on his head, remains cheerily oblivious that he has come to represent the collision of two deeply flawed American systems, immigration and health care.
Eight years ago, Mr. Jiménez, 35, an illegal immigrant working as a gardener in Stuart, Fla., suffered devastating injuries in a car crash with a drunken Floridian. A community hospital saved his life, twice, and, after failing to find a rehabilitation center willing to accept an uninsured patient, kept him as a ward for years at a cost of $1.5 million.
What happened next set the stage for a continuing legal battle with nationwide repercussions: Mr. Jiménez was deported — not by the federal government but by the hospital, Martin Memorial. After winning a state court order that would later be declared invalid, Martin Memorial leased an air ambulance for $30,000 and “forcibly returned him to his home country,” as one hospital administrator described it.
Since being hoisted in his wheelchair up a steep slope to his remote home, Mr. Jiménez, who sustained a severe traumatic brain injury, has received no medical care or medication — just Alka-Seltzer and prayer, his 72-year-old mother said. Over the last year, his condition has deteriorated with routine violent seizures, each characterized by a fall, protracted convulsions, a loud gurgling, the vomiting of blood and, finally, a collapse into unconsciousness.
“Every time, he loses a little more of himself,” his mother, Petrona Gervacio Gaspar, said in Kanjobal, the Indian dialect that she speaks with an otherworldly squeak.
Mr. Jiménez’s benchmark case exposes a little-known but apparently widespread practice. Many American hospitals are taking it upon themselves to repatriate seriously injured or ill immigrants because they cannot find nursing homes willing to accept them without insurance. Medicaid does not cover long-term care for illegal immigrants, or for newly arrived legal immigrants, creating a quandary for hospitals, which are obligated by federal regulation to arrange post-hospital care for patients who need it.
American immigration authorities play no role in these private repatriations, carried out by ambulance, air ambulance and commercial plane. Most hospitals say that they do not conduct cross-border transfers until patients are medically stable and that they arrange to deliver them into a physician’s care in their homeland. But the hospitals are operating in a void, without governmental assistance or oversight, leaving ample room for legal and ethical transgressions on both sides of the border.
Indeed, some advocates for immigrants see these repatriations as a kind of international patient dumping, with ambulances taking patients in the wrong direction, away from first-world hospitals to less-adequate care, if any.
“Repatriation is pretty much a death sentence in some of these cases,” said Dr. Steven Larson, an expert on migrant health and an emergency room physician at the Hospital of the University of Pennsylvania. “I’ve seen patients bundled onto the plane and out of the country, and once that person is out of sight, he’s out of mind.”
Hospital administrators view these cases as costly, burdensome patient transfers that force them to shoulder responsibility for the dysfunctional immigration and health-care systems. In many cases, they say, the only alternative to repatriations is keeping patients indefinitely in acute-care hospitals.
“What that does for us, it puts a strain on our system, where we’re unable to provide adequate care for our own citizens,” said Alan B. Kelly, vice president of Scottsdale Healthcare in Arizona. “A full bed is a full bed.”
Medical repatriations are happening with varying frequency, and varying degrees of patient consent, from state to state and hospital to hospital. No government agency or advocacy group keeps track of these cases, and it is difficult to quantify them.
A few hospitals and consulates offered statistics that provide snapshots of the phenomenon: some 96 immigrants a year repatriated by St. Joseph’s Hospital in Phoenix; 6 to 8 patients a year flown to their homelands from Broward General Medical Center in Fort Lauderdale, Fla.; 10 returned to Honduras from Chicago hospitals since early 2007; some 87 medical cases involving Mexican immigrants — and 265 involving people injured crossing the border — handled by the Mexican consulate in San Diego last year, most but not all of which ended in repatriation.
Over all, there is enough traffic to sustain at least one repatriation company, founded six years ago to service this niche — MexCare, based in California but operating nationwide with a “network of 28 hospitals and treatment centers” in Latin America. It bills itself as “an alternative choice for the care of the unfunded Latin American nationals,” promising “significant saving to U.S. hospitals” seeking “to alleviate the financial burden of unpaid services.”
Many hospitals engage in repatriations of seriously injured and ill immigrants only as a last resort. “We’ve done flights to Lithuania, Poland, Honduras, Guatemala and Mexico,” said Cara Pacione, director of social work at Mount Sinai Hospital in Chicago. “But out of about a dozen cases a year, we probably fly only a couple back.”
Other hospitals are more aggressive, routinely sending uninsured immigrants, both legal and illegal, back to their homelands. One Tucson hospital even tried to fly an American citizen, a sick baby whose parents were illegal immigrants, to Mexico last year; the police, summoned by a lawyer to the airport, blocked the flight. “It was horrendous,” the mother said.
Sister Margaret McBride, vice president for mission services at St. Joseph’s in Phoenix, which is part of Catholic Healthcare West, said families were rarely happy about the hospital’s decision to repatriate their relatives. But, she added, “We don’t require consent from the family.”
In a case this spring that outraged Phoenix’s Hispanic community, St. Joseph’s planned to send a comatose, uninsured legal immigrant back to Honduras, until community leaders got lawyers involved. While they were negotiating with the hospital, the patient, Sonia del Cid Iscoa, 34, who has been in the United States for half her life and has seven American-born children, came out of her coma. She is now back in her Phoenix home.
“I can think of three different scenarios that would have led to a fatal outcome if they had moved her,” John M. Curtin, her lawyer, said. “The good outcome today is due to the treatment that the hospital provided — reluctantly, and, sadly enough, only in response to legal and public pressure.”
Unlike Ms. Iscoa and Mr. Jiménez, most uninsured immigrant patients in repatriation cases do not have advocates fighting for them, and they are quietly returned to their home countries. Sometimes, their families accept that fate because they are told they have no options; sometimes they are grateful to the hospital for paying their fare home, given that other hospitals leave it to relatives or consulates to assume responsibility for the patients.
Mr. Jiménez’s case is apparently the first to test the legality of cross-border patient transfers that are undertaken without the consent of the patients or their guardians — and the liability of the hospitals who undertake them.
“We’re the rhesus monkey on this issue,” said Scott Samples, a spokesman for Martin Memorial.
A Life-Changing Accident
Mr. Jiménez’s journey north was propelled by the usual migrant’s dreams. When he pledged thousands of dollars to pay the smuggler who delivered him to the United States, he envisioned years of labor on the lawns of affluent America and then a payoff: the means to buy land of his own, to cultivate his own garden, back in Guatemala.
But fate — in the person of Donald Flewellen, a pipe welder with a drug problem and a long criminal record — intervened. At lunchtime on Feb. 28, 2000, Mr. Flewellen was loitering in the parking lot of a Publix supermarket in Palm Beach Gardens, Fla., when the employees of an irrigation company ran inside, leaving the keys in their van. Seizing the moment, Mr. Flewellen, a thorn in the side of local prosecutors with at least 14 arrests, jumped into the van and drove off.
In the next few hours, Mr. Flewellen consumed enough alcohol to produce a blood-alcohol level four times higher than the legal limit. But drive he did, along the back roads that connect the affluent Treasure Coast to the agricultural interior where Guatemalan Mayan immigrants have settled in a place, coincidentally, called Indiantown.
About 4 p.m., Mr. Flewellen was heading east on a rural road just as Mr. Jiménez and three compatriots were returning home from a day of landscaping. His stolen van and their 1988 Chevrolet Beretta crashed head-on, instantly killing two of the Guatemalans and severely injuring the driver and Mr. Jiménez, a back-seat passenger.
Identified first as John Doe, Mr. Jiménez arrived by ambulance at Martin Memorial, a not-for-profit hospital on the banks of the St. Lucie River in Stuart. He was unconscious and in shock from extensive bleeding, with two broken thigh bones, a broken arm, multiple internal injuries, a terribly lacerated face and a severe head injury. A doctor noted his prognosis as “poor.”
But Mr. Jiménez, after intensive surgical and medical intervention, survived. “He was no longer Luis; he was another person,” Montejo Gaspar Montejo, his cousin by marriage, said, describing a previously husky and industrious laborer who was also a soccer enthusiast. “He didn’t talk. He didn’t understand anything. He stayed curled up in a ball. But he was alive.”
During that time, Martin Memorial asked Michael R. Banks, a local lawyer who specializes in estate planning, to set up a guardianship for Mr. Jiménez. “I said, ‘Sure, what can come of such a case?’ ” Mr. Banks said. “Then it took on a life of its own. They probably regret they ever called me.”
Mr. Jiménez, whose common-law wife and two children remained in Guatemala, had been living for just under a year with Mr. Gaspar’s family. Mr. Gaspar, who works in golf-course maintenance, agreed to serve as guardian.
At first, things were amicable. In the summer of 2000, Mr. Jiménez was transferred to a nursing home in Stuart, which may have accepted him because an insurance payout was possible.
Mr. Flewellen, who eventually pleaded guilty to D.U.I. manslaughter, D.U.I. injury and grand theft auto, was not insured. But the Guatemalan families sought to hold the irrigation company liable since its employees left the keys in the car. Their lawsuit ultimately failed.
In the nursing home, Mr. Jiménez began wasting away. His relatives grew anxious. Then, Robert L. Lord Jr., Martin Memorial’s vice president of legal services, said, “Mr. Jiménez was put back on our doorstep.”
He arrived by ambulance, this time emaciated and suffering from ulcerous bed sores so deep that the tendons behind his knees were exposed. With infection raging, “the question to be answered is if the patient’s condition is terminal,” a doctor wrote in his file.
Again, Martin Memorial’s doctors provided life-saving care. Hospitals are mandated to treat and stabilize anyone suffering from an emergency medical condition, and the federal government does provide emergency Medicaid coverage for illegal and new immigrants.
But hospitals say that emergency Medicaid covers only a small fraction of those expenses: $80,000 in Mr. Jiménez’s case, according to court papers.
Mr. Jiménez remained in a vegetative state, coiled in a fetal position, for “one year, two months and 15 days,” Mr. Gaspar said with precision.
Stunning his relatives and medical officials, though, Mr. Jiménez gradually woke up and started interacting with the world. “One day,” Mr. Gaspar said in Spanish, “we arrived for a visit, and he said to me, ‘You are Montejo.’ ”
Not long afterward, the battle began between Martin Memorial and Mr. Gaspar, a reserved man whose Indiantown living room is decorated with a “We Love America” clock, a beach towel from the ancient city of Tikal and a hammered metal image of the Virgin Mary.
A Hospital’s Dilemma
The average stay at Martin Memorial, a relatively tranquil hospital which features a palm frond design in its gleaming lobby floor and white-coiffed volunteers in its gift shop, is 4.1 days and costs $8,188. Patients rarely linger.
Those like Mr. Jiménez who outstay their welcome are an oddity but not an anomaly. Mr. Jiménez had a roommate from Jamaica, a diabetic who lost both legs. Martin Memorial eventually flew him back to his native country, too.
In addition to trauma patients, there are uninsured immigrants with serious health problems. “In our emergency room, we don’t turn anyone away,” said Carol Plato Nicosia, the director of corporate business services. “The real problem is if we find an underlying problem, and now we have six of them — six patients who showed up in renal failure and that we are now seeing three times a week for dialysis.”
One of the six, she said, voluntarily returned to Guatemala after receiving a poor prognosis. But she showed up at Martin Memorial again after her relatives insisted that she undertake the trek over the borders a second time because she could not get treatment in Guatemala, Ms. Plato Nicosia said.
“I don’t want to sound heartless,” Ms. Plato Nicosia said. “A community hospital is going to give care. But is it the right thing? We have a lot of American citizens who need our help. We only make about 3 percent over our bottom line if we’re lucky. We need to make capital improvements and do things for our community.”
Martin Memorial reported a total margin of 3.6 percent over its bottom line last year and 6 percent in 2006. According to the most recent statewide data, the nonprofit medical center also reported assets of $270.6 million in 2006, with its senior executives earning more than $4 million in salaries and benefits.
Tax-exempt hospitals are expected to dedicate an unspecified part of their services to charity cases, and Martin Memorial devoted $23.9 million in 2006, about 3 percent, which was average for Florida, according to state data.
Mr. Jiménez was a very expensive charity case. In cases like his, where patients need long-term care, hospitals are not allowed to discharge them to the streets. Federal regulations require them — if they receive Medicare payments, and most hospitals do — to transfer or refer patients to “appropriate” post-hospital care.
But in most states, the government does not finance post-hospital care for illegal immigrants, for temporary legal immigrants or for legal residents with less than five years in the United States. (California and New York City are notable exceptions; Medi-Cal, the state’s Medicaid program, spends $20 million a year on long-term care for illegal immigrants, as does the Health and Hospitals Corporation of New York City.)
Martin Memorial’s lawyer, Mr. Lord, said hospitals should not be forced to assume financial and legal responsibility for these cases. “It should be a governmental burden,” he said, “or the government should step in and otherwise exercise its authority for deportation or whatever it wants to do.”
In Mr. Jiménez’s case, the hospital’s doctors determined that appropriate post-hospital care meant traumatic brain injury rehabilitation. Much to the surprise of the hospital staff, Mr. Jiménez had regained cognitive function to about the level of a fourth-grade child.
Hospital discharge planners searched to no avail for a rehabilitation program or nursing home. “Unable to take patient” was the response to many queries, as noted in Mr. Jiménez’s files, which also state: “At this time, patient remains a disposition problem.”
Representing Mr. Jiménez’s guardian, Mr. Banks took the position that the hospital had a responsibility to provide Mr. Jiménez with the rehabilitation he needed — even if it meant paying a rehabilitation center to provide it. That, he noted, could have benefited both the hospital and the patient.
“It would have been more cost-effective for them,” Mr. Banks said, given that daily patient costs in long-term care are far lower than in acute-care hospitals. “And if the rehab worked, then Luis might have become a functional person and nobody’s charge.”
But the hospital declined, as Mr. Lord put it, “to take out our checkbook” and subsidize his care at another institution.
“Once you take that step, for how long are you going to do that — a year, 10 years, 50 years?” Mr. Lord, the lawyer, asked.
At that point, the hospital intensified its efforts to involve the Guatemalan government in the case. In a memorandum obtained by The New York Times, a consular official wrote that the hospital “informed us of how expensive it was becoming to care for Luis given that there was no insurance and that he is illegal and that the state won’t assume responsibility for his charges.”
Eventually, the Guatemalan health minister wrote a letter assuring Martin Memorial that his country was prepared to care for Mr. Jiménez. Gabriel Orellana, who was foreign minister at the time but did not have direct knowledge of the case, said the Guatemalan government was disposed to assist an American institution. “If a hospital in Florida asks if we can take care of a Guatemalan patient, the tendency is to say yes,” Mr. Orellana said.
Mr. Gaspar was dubious, believing the public health care system in his homeland to be grossly inadequate.
So the guardian and the hospital reached an impasse, and Martin Memorial finally took the matter to court, asking a state judge to compel Mr. Gaspar to cooperate with its repatriation plan. In June 2003, a hearing was held before Circuit Judge John E. Fennelly.
The Journey Home
In the courthouse in Stuart, a low-key, upscale town that boasts world-class fishing, George F. Bovie III, a lawyer for Martin Memorial, addressed the judge: “This case is not simply a case, as some would try and paint it, of money. This is a case about care for a man in this country illegally who has reached maximum medical improvement at our hospital and is ready to be discharged and whose home government” is prepared to receive and treat him.
Mr. Banks responded: “Your honor, this is a case about a hospital that has failed to do its job properly,” adding that the hospital sought to “have this court legitimize its patient dumping.”
By the time of the hearing, Mr. Jiménez was essentially a boarder at the hospital, wheeling around the hallways and hanging out at the nursing stations. Diana Gregory, a nurse who supervises case management and discharge planning, said in a recent interview that Mr. Jiménez — “I will affectionately call him Louie” — became “like family” to hospital staff members, who bought him birthday cakes, knitted him blankets and gave him toys.
According to hospital records, however, it was not all pastries and presents. Mr. Jiménez grew depressed as he gradually became more cognizant of his situation. He showed signs of regression, too. Emotional and behavioral volatility often follow serious head injuries, and Ms. Gregory said that Mr. Jiménez had developed some disturbing habits, including spitting, yelling out, kicking and defecating on the floor.
In court, his doctor, Walter Gil, testified that Mr. Jiménez would benefit from returning to the intimacy of his family. In his case file, the doctor had noted that Mr. Jiménez had told him, “Estoy triste,” meaning, “I’m sad.”
Dr. Gil said he asked Mr. Jiménez, “Why are you sad when you have basically everything that could be offered to you?” And, he said, Mr. Jiménez replied, “I miss my family and my wife.”
Mr. Banks’s witnesses challenged what they described as Guatemala’s vague offer to care for Mr. Jiménez.
Dr. Miguel Garcés, a prominent Guatemalan physician and public health advocate, said in a deposition that serious rehabilitation “is almost nonexistent” in Guatemala outside private facilities. He predicted that Mr. Jiménez would be taken in and then released from the country’s one public rehabilitation hospital within a matter of weeks.
“I don’t want him to go home and die,” Dr. Garcés said.
“Nobody wants him to go home and die,” the hospital’s lawyer responded.
A few weeks later, Judge Fennelly ruled. “This Court,” he wrote, “sails on uncharted seas.” He acknowledged that his decision might provoke dissent but opined, “As Aquinas once stated, ‘The good is not the enemy of the perfect,’ ” inverting and misattributing Voltaire’s famous quote, “The perfect is the enemy of the good.”
And then he granted the hospital’s petition, ordering that Mr. Gaspar stop “frustrating” the hospital’s plan to “relocate the ward” back to Guatemala.
Mr. Banks was stunned. He filed a notice of appeal and asked for a stay of the court’s order while the appeal was pending. The judge asked the hospital to file a response by 10 a.m. on July 10 before he ruled on the stay.
Four and a half hours before that response was due, shortly before daybreak on July 10, 2003, an ambulance picked up Mr. Jiménez at the hospital and drove him to the St. Lucie County airport, where an air ambulance waited to transport him back to Guatemala. Mr. Gaspar was not apprised.
“We went to see him at the hospital, and his bed was empty,” he said.
The hospital’s lawyer declined to comment on why the hospital did not wait for the judge to rule on the stay.
Diana Gregory, the nurse, traveled to Guatemala with Mr. Jiménez, bringing a wheelchair, a week’s worth of medications, “lunch/snacks/juices/treats,” and an emergency passport signed with a fingerprint, according to discharge records. Mr. Jiménez wore a Florida Marlins cap and carried a toy cellphone.
During the flight, the records said, Mr. Jiménez dozed, paged through picture books, pushed the window shade up and down and pointed outside, saying, “Look, look!” When he arrived in Guatemala, an ambulance took him to the National Hospital for Orthopedics and Rehabilitation, which occupies the converted stables of an old villa in the historic center of the capital city.
Ms. Gregory accompanied him there, turned over his records and toured the hospital. In a recent interview, Ms. Gregory said she was impressed by the place and especially by the staff’s pride in it, despite equipment that looked “like it could have been donated to the Smithsonian.” She added, “That facility could have taken care of me any day.”
While Ms. Gregory was taking her tour, Mr. Jiménez was holding court, according to her notes in his file, “telling everyone that he was from Miami, Florida, and showing them his toy cat.” At her request, a physician told Mr. Jiménez in Spanish “that he would be staying with his new friends in Guatemala and that I was leaving.” His response, according to her notes: “O.K., O.K., adiós.”
Glad that she had helped reunite Mr. Jiménez with his homeland, she said, “I left Guatemala quiet in my heart.”
Care in Guatemala
Immaculately clean but dilapidated, Guatemala’s National Hospital for Orthopedics and Rehabilitation operates on a shoestring budget of approximately $400,000 a year, according to Dr. Harold Von Ahn, who was director when Mr. Jiménez arrived.
Half the hospital is devoted to orthopedic care and the other half serves as an “asylum” for profoundly disabled Guatemalans. Although it is the only public rehabilitation hospital in the country, it dedicates just 32 beds to rehabilitation and does not offer the specialized brain injury treatment that Mr. Jiménez needed.
The Guatemalan foreign ministry said that it knew of 53 repatriations by American hospitals in the last five years. During a visit by The Times to the National Hospital in June, the most recent arrival was an 18-year-old, Diana Paola Miguel, transported there by the University Medical Center in Tucson nine days after a van accident crushed her pelvis, which the Arizona hospital repaired. Supine on a gurney, she Ms. Paola was too tremblingly upset to talk.
Dr. Von Ahn said he believed that American hospitals were dumping patients that should be their responsibility. “It’s the same as the classic fall on the stairs, right?” he said. “You go to my home, you fall on my stairs and then you sue me. I am responsible.”
Shortly after Mr. Jiménez arrived, the Guatemalan hospital contacted his common-law wife, Fabiana Domingo Laureano, who lived in the city of Antigua with their two young sons, and asked her to come get him. Ms. Domingo, who was 27 at the time, was shocked to learn that her husband was back and terrified by the request. Then as now, she was eking out a living, selling traditional woven clothing in a marketplace while sharing a spare, concrete room with her sons in her parents’ humble home.
“I was already living from hand to mouth,” she said in an interview in Antigua, where her sons now supplement her income by selling cigarettes after school. “How could I possibly have given him what he needs?”
The couple met as teenagers in the highland village of Soloma. In the mid-1990s, Mr. Jiménez migrated with his wife’s family to Antigua, a volcano-ringed colonial city where tourism sustains the local economy. While she sold clothing, Mr. Jiménez worked as a bus driver’s assistant. Together, they earned about $6 a day, which was not enough to support their family, so Mr. Jiménez, with his wife’s brother, Francisco Gaspar, decided to follow a well-traveled path to the north. That is when he changed his name from Gervacio Gaspar to Luis Jiménez, which is how he is now known, even by his family.
After pledging to pay a coyote, or smuggler, about $2,000 each to ferry them into the United States, they crossed into California under cover of darkness and made their way to Encinitas, where Mr. Jiménez’s older brother lived, Mr. Gaspar said.
After the two men failed to find regular work, Mr. Gaspar began suffering panic attacks and returned to Guatemala; Mr. Jiménez decided to try his luck in Florida.
“Lamentably,” Mr. Gaspar said, “luck eluded him.”
After the hospital contacted Ms. Domingo, Telemundo, the Spanish-language network, called Ms. Domingo and offered to take her to Guatemala City. Shortly thereafter, the network showed her reunion with her husband.
“You are Maria by chance?” Mr. Jiménez said to his wife as the television cameras rolled.
“Fabiana,” she replied. Their two sons stood by her side, wide-eyed.
A few weeks later, Dr. Von Ahn said, the hospital discharged Mr. Jiménez “because we needed the bed,” transferring him to another public hospital, San Juan de Dios. That is where Mr. Jiménez’s brother, Enrique Lucas Gervacio, found him when he made his way down from the mountains by bus.
“He was lying in the hallway on a stretcher, covered in his own excrement,” Mr. Lucas said. “So we cleaned him up and we brought him home.”
In Favor of Jiménez
In May, 2004, a Florida appeals court overruled Judge Fennelly.
The Fourth District Court of Appeal found that the Florida state judge had overstepped his bounds because deportation is the prerogative of the federal government. The court also declared that no evidence supported the hospital’s assertion that Mr. Jiménez would receive appropriate care in Guatemala; the discharge plan, the ruling said, was not detailed enough to satisfy federal requirements or the hospital’s own rules.
The appeals court voided the judge’s order although, given that Mr. Jiménez was already back in Guatemala, that action came too late for him.
It might affect others, though. The decision has become what is known legally as a case of first impression on the issue of hospital repatriations.
John DeLeon, a lawyer who advises the consulates of Mexico, Honduras and Guatemala in Miami, said he now referred to it when he received calls from hospitals looking to discharge seriously injured or ill immigrants.
“I now write I call my Montejo Gaspar letter,” he said. “It’s a letter that says, ‘Listen, don’t take action to dump this individual because you’ll be risking legal action. The law is now that hospitals can’t dump immigrant patients without securing appropriate after-care. If somebody has a serious illness and needs continuing care, a hospital can’t simply discharge them onto the street, much less put them on a plane.’ ”
Mr. DeLeon said that he was “bombarded by such cases,” adding that he was investigating another medical repatriation by Martin Memorial, which took place two weeks ago “behind the back of the Mexican government.”
Martin Memorial confirmed that on July 16 they flew Neptali Díaz, a severely brain-injured patient to Mexico. A court order authorized Mr. Diaz’s transfer to an unspecified Mexican hospital, ending the man’s 859-day, $2 million stay at Martin Memorial.
After the ruling in Mr. Jiménez’s favor, Martin Memorial did not appeal. But the case did not go away. The appeals court ruling set the stage for a personal injury lawsuit, taken on by Searcy, Denney, Scarola, Barnhart & Shipley in West Palm Beach.
With that established firm behind him, Mr. Gaspar initiated a false imprisonment action claiming that his cousin was essentially kidnapped by the hospital and smuggled out of the country in a kind of medical rendition. Since then, appeals judges have again ruled in Mr. Jiménez’s favor, stating the hospital can be sued for punitive damages as well as for the cost of his medical care.
This infuriates Ms. Plato Nicosia, the hospital administrator, who said it was Mr. Jiménez’s family who owes the hospital money and not vice versa. “Should they win, we would like them to take those damages and pay his hospital bill,” she said.
Jack Scarola, representing Mr. Jiménez’s guardian, said that he empathized with the hospital’s “significant economic burden” but said that it was the “quid pro quo” of accepting Medicare and Medicaid funds to help finance the hospital’s services. (About 45 percent of Martin Memorial’s net operating revenues came from Medicare and Medicaid last year, based on state data.)
“Also,” he continued, “they chose the wrong way to deal with it. The right way would have been through the Legislature. There is no program in place to appropriately distribute care to undocumented persons who are catastrophically injured, and there should be. But you don’t stick a brain-injured immigrant on a private plane and spirit him out of the country in the predawn hours.”
Weighing Quality of Life
The journey to Jolomcú is an arduous one, as Mr. Jiménez’s new legal team discovered when several members — a lawyer, a paralegal, a priest and a bioethicist — first traveled there to meet him.
After a five-hour drive north from Guatemala City to Huehuetenango and then a winding trip, filled with hairpin turns on cliff-hugging roads up and over the Cuchumatán Mountains, they arrived at the provincial city of Soloma.
From there, the road to Mr. Jiménez’s hamlet only goes so far, and the trip must be completed on foot, up and down a rutted dirt path through goat-strewn meadows. The Americans arrived at the top panting. There, awaiting them, in an idyllically situated one-room brick house, was Mr. Jiménez, a broad grin lighting up his face.
“The first striking thing was his disposition: He was very, very happy,” said the Rev. Frank O’Loughlin, who pastored migrant workers in South Florida for decades. “Then, the second thing, he was well cared for. What I did was I got down over him and hugged him but also smelled. And there were no bedsores. Nothing was malodorous.”
As they drove back to Huehuetenango, Marnie R. Poncy, a nurse-lawyer who runs a bioethics law project in Palm Beach County, offered her view: “I said, ‘His quality of life is better than it would be in an American nursing home.’ ”
“But I hazarded a guess that his longevity of existence was probably severely curtailed,” she said.
Still, the team reached a conclusion that surprised them: “There was no real compelling reason to think of bringing him back to Florida,” Father O’Loughlin said. “We needed to focus on getting help to him or him to help in Guatemala.”
Help has been slow in arriving.
When The Times took the trek to visit him in late June, Mr. Jiménez had not budged from his hilltop home since returning there and no medical professional had visited him, either. With his mother too frail to move him into his wheelchair, his life had shrunken to the confines of his bed, across from his mother’s.
During the visit, Mr. Jiménez, wearing a nubby Adidas hat and a ski jacket, sat wrapped in a Guatemalan blanket; his mother, who wore a traditional woven skirt, with a floral scarf braided through her long gray hair, stood by his side. She patted his head; he reached out to pick lint from her sweater.
A few days prior, he had suffered a particularly violent seizure.
“He was almost dead,” his mother, Mrs. Gervacio, said in Kanjobal, which was translated into Spanish by a school principal serving as interpreter. “For many years, I am caring for him like he is a baby, changing his diaper, washing him. But this is worse. I am worried to leave him alone at all.”
She is right to worry, said physicians consulted for this article. Patients suffering seizure disorders run the risk of injuring themselves — and of increasing their brain damage.
Still, Mrs. Gervacio does leave from time to time, she said, to go to Mass, shutting the door behind her and hoping for the best.
“It scares me a lot when you leave, Mama!” Mr. Jiménez blurted out, revealing that he was intently following the conversation that at first took place as if he were not there.
Given that Mr. Jiménez’s mother’s health is failing, the family worries about the future, too. And Mr. Jiménez shares their concern. “The day my mother is no longer, what’s going to happen to me?” he said. “This is what I have on my mind.”
Mr. Jiménez, whose memory is patchy, said he remembered nothing about his time in the United States — not Indiantown, not his job as a gardener, not the accident and not the hospital.
He does, remember the dreams that propelled his migration, and he expressed them eloquently: “I headed north like a peasant with a heavy bundle on his back, bent over, determined to better himself,” he said. “Other people had things so I thought, ‘Why not me?’ But now I regret it. Maybe God was punishing me for my illusions.”
“No, Luis,” the interpreter interjected, “it was just chance, an accident, a car accident.”
In Guatemala City, Dr. Garcés, the public health advocate, said that he was not surprised that, as he had predicted, Mr. Jiménez never received further medical care. “That’s the usual story of patients that are released from the National Orthopedic Hospital,” he said.
Dr. Garcés called Mr. Jiménez’s repatriation “inhumane.”
“In cases like that, if you cut the medical care, you’re hurting that person,” Dr. Garcés said. “You’re doing just the opposite of what the medical system should do. That goes against every international convention of human rights and health. To send him to Guatemala was to send him to very poor living and health conditions and probably he will die because of that, and that’s not fair.”
Without evaluation, doctors cannot know what potential for rehabilitation — or survival — Mr. Jiménez possesses.
If Mr. Jiménez’s guardian were to prevail in the lawsuit, “it would be possible to set up a good health care arrangement for him because in private practice we have all types of specialties that he needs,” Dr. Garcés said. “And transportation could be arranged.” But the case could drag on for years.
On the day of The Times’s visit, before Mr. Jiménez ate a lunch of eggs, tortillas and sugar water, Mr. Banks, the lawyer, gave him a present from his cousins in Florida — a plastic bag bulging with tube socks, undershirts and oversize sweatpants. Mr. Jiménez fingered the clothing with little interest but when a reporter began to read him the accompanying letter in Spanish, he snatched it excitedly from her hands.
Much to the surprise of his visitors, Mr. Jiménez, despite his brain injury, could read. He smoothed out the yellow legal paper from Mr. Gaspar and began: “I am sending you some little things. Luis, I hope that you like them.”
At first, Mr. Jiménez read haltingly, then more fluidly. Later, when all his visitors had gone outside, he read the ending aloud again to himself.
“I want to tell you,” he read, “that we miss you and love you a lot. May God continue to bless you.”
Mr. Jiménez smiled, and repeated, softly, “May God continue to bless you.”
**Story Link
**Image Courtesy of Josh Haner (NYT): "Luis Alberto Jiménez, an illegal immigrant injured in a car accident in Florida, was treated at a community hospital, which eventually sent him back to Guatemala. He spends most of his days inside a one-room house; only the presence of visitors, who can help him into his wheelchair, gives him the rare chance to get out of bed."
7/30/08
Phoenix Mayor Challenges Popular Sheriff’s Anti-Immigration Tactics, by Rebecca Spence (Daily Forward)
At first glance, Mayor Phil Gordon’s office in downtown Phoenix looks like that of any other mayor, replete with photos of his kids and a sweeping view of the city. In the case of Arizona’s capital, that means rolling desert hills. But in an otherwise sparsely decorated workspace, one detail stands out: a silver tray of Israeli shekels atop the coffee table.
Gordon is the first Jewish mayor of Phoenix, one of America’s fastest-growing cities. A popular leader serving his second term, Gordon has spoken out on behalf of Israel more than most local elected officials. He even penned an opinion article on the threat of Iran, in which he urged other local politicians to take a stand. But he also has taken a vocal position on an issue that is less of his choosing and more a product of his city’s circumstance: how to handle illegal immigration.
That led Gordon to travel last year to Washington to lobby for comprehensive immigration reform after an immigration reform bill co-authored by Arizona senator and presumptive Republican presidential nominee John McCain failed to pass. Gordon, a Democrat, endorsed McCain in the presidential primary, though he now says that in the general election he is remaining neutral.
Gordon’s endorsement of the senator had, by all appearances, less to do with policy than with friendship and loyalty — traits Gordon said he learned from his Jewish grandfather, a Lithuanian immigrant.
Gordon, 57, leads a city increasingly at the nexus of the debate over how to handle undocumented workers who pour across the border with Mexico. In recent months, that debate has intensified in Phoenix, as the Maricopa County sheriff, Joe Arpaio, has taken extreme measures to round up and deport illegal immigrants. Gordon, along with local Jewish groups, has made decrying the sheriff’s strong-armed tactics — which, according to news reports, have included forcing arrested illegal immigrants to wear pink underwear and eat rotten green bologna sandwiches — a top priority.
“The mayor is the only high-level politician in Arizona who stood up against the sheriff,” said Rabbi Maynard Bell, executive director of the Arizona chapter of the American Jewish Committee. “Suddenly the sheriff is no longer a sacred cow anymore, and I think it took the mayor’s courage to do that.”
Since last January, the sheriff has been conducting what he calls “crime suppression sweeps,” in which he and a posse of volunteer deputies show up in predominantly Hispanic neighborhoods, stop residents for minor traffic violations and then question them about their immigration status. A recent “sweep” here rounded up 27 Hispanics who the sheriff believes may be in the country illegally. The “sweeps” are often accompanied by rowdy anti-immigrant rallies, as well as counter-protests.
In an interview at his City Hall office, Gordon pointed to a sign that had been held at one of the rallies accompanying an Arpaio “sweep.” The sign, rendered in scrawled handwriting, read “Hooray for slaughtering of illegals, Boo to the beaners!,” with a swastika drawn at the bottom.
The mayor, a former lawyer, holds that the sheriff’s actions are tantamount to racial profiling and represent a violation of civil rights. He first spoke out against the sheriff’s tactics in late March, at the seventh annual Cesar Chavez Day luncheon here. That same week, he sent a letter to U.S. Attorney General Michael Mukasey asking for a federal investigation into Arpaio’s tactics. (As of yet, there has been no word on the status of that request.)
A spokesman for Arpaio did not return a call seeking comment.
Gordon’s criticism of the sheriff has not been welcome in all corners of the Phoenix Jewish community. Amy Laff, founding chairwoman of the Arizona chapter of the Republican Jewish Coalition, said in an e-mail that “the mayor should not engage in undermining legitimate enforcement efforts by the County Sheriff by, for example, requesting an FBI investigation into the Sheriff’s Department immigration enforcement activities.”
And Arpaio is a highly popular figure among the Arizona electorate. An Arizona State University poll conducted in late April showed a 59% approval rating for the Maricopa County sheriff. Gordon, on the other hand, had only a 42% approval rating.
But Gordon, who first took office in 2004 and was re-elected last September with nearly 80% of the vote, said that he spoke against Arpaio because it was the right thing to do.
“Certainly standing up to the sheriff isn’t the wisest thing to do politically, but it was the right thing to do ethically and morally,” Gordon said. “I personally regret that I didn’t do it earlier.”
**Story Link
**Image Courtesy of the City of Phoenix
7/25/08
AG now says college OK for illegals, by Kristin Collins (New Observer)
The state Attorney General's Office says it's legal for the N.C. Community College System to admit illegal immigrants.
That advice, given to the colleges Thursday and made public today, represents a reversal for the office of Attorney General Roy Cooper, which advised the colleges in May to bar illegal immigrants from degree programs. The colleges took that advice and issued a new policy prohibiting illegal immigrants from enrolling, even at out-of-state tuition rates. Cooper's office said at the time that post-secondary education might qualify as a public benefit to which illegal immigrants are not entitled under federal law.
But on Monday, Cooper's office got a letter from federal Immigration and Customs Enforcement, in response to a request for clarification of the law. The letter, from former Mecklenburg County Sheriff Jim Pendergraph, who now works for Immigration and Customs Enforcement, said that admission to colleges is not considered a public benefit under federal law.
Federal officials made the same statement to the News & Observer in May, but officials with the community colleges and the Attorney General's Office said they wanted to wait for a formal letter.
J.B. Kelly, general counsel, advised the colleges in a letter Thursday that it is up to them to decide whether to admit illegal immigrants.
Community College System President Scott Ralls was not immediately available for comment on whether he would lift the ban on illegal immigrants.
**Story Link
That advice, given to the colleges Thursday and made public today, represents a reversal for the office of Attorney General Roy Cooper, which advised the colleges in May to bar illegal immigrants from degree programs. The colleges took that advice and issued a new policy prohibiting illegal immigrants from enrolling, even at out-of-state tuition rates. Cooper's office said at the time that post-secondary education might qualify as a public benefit to which illegal immigrants are not entitled under federal law.
But on Monday, Cooper's office got a letter from federal Immigration and Customs Enforcement, in response to a request for clarification of the law. The letter, from former Mecklenburg County Sheriff Jim Pendergraph, who now works for Immigration and Customs Enforcement, said that admission to colleges is not considered a public benefit under federal law.
Federal officials made the same statement to the News & Observer in May, but officials with the community colleges and the Attorney General's Office said they wanted to wait for a formal letter.
J.B. Kelly, general counsel, advised the colleges in a letter Thursday that it is up to them to decide whether to admit illegal immigrants.
Community College System President Scott Ralls was not immediately available for comment on whether he would lift the ban on illegal immigrants.
**Story Link
7/8/08
Law Students Rush to Meet Needs In Booming Field of Immigration, By Karin Brulliard (WP)
Ann Kim made monthly trips this year to a Richmond area immigrant detention center, trying to free a mentally ill Honduran man. He ended up being deported, but Kim got something out of it: more experience in the burgeoning field of immigration law.
"Immigration is becoming more and more complex, and it's going against immigrants rather than for them," said Kim, 27, a second-generation Korean American who took the Honduran's case as part of her immigration law clinic at American University's Washington College of Law. "There's a great need for lawyers."
A subject that three decades ago was a secondary, technical field delegated to adjunct professors is booming at law schools nationwide. Elective immigration law courses taught by tenured specialists are filling lecture halls, immigration clinics are expanding and student groups devoted to the subject are mushrooming.
The momentum is partly driven by a high-profile, rancorous immigration debate. But it is also the result of an era of mass immigration that has fueled demand from foreigners and businesses seeking help navigating U.S. immigration statutes and has created a generation of law students intimately familiar with the issue, often because they are children of immigrants or immigrants themselves.
"Immigration is just one part of a much broader story about globalization, of movement of goods and movement of people and movement of ideas, and what used to be a backwater of the law has become mainstream," said T. Alexander Aleinikoff, dean of Georgetown University Law School, who co-authored the first major immigration law casebook in 1985. "This is certainly a very, very hot topic."
Unlike undergraduates, law students do not pick majors, so there are no statistics on the number studying immigration law. But professors say there is no question about the explosion in interest.
When AU created an immigration division within its well-known human rights clinic three years ago, administrators struggled to fill it; now, as many as 32 students vie each year for 16 slots. "We have to beat them away with a stick," said Richard Wilson, a professor. Two years ago, the school added two more sections of a basic immigration law course.
At least 50 law schools offer immigration clinics, which usually give students the chance to represent indigent immigrants who have no right to court-appointed lawyers. More sprout each year: This year, clinics have been launched at the University of La Verne and Southwestern Law School in Southern California, as well as at schools in areas that have seen recent influxes in immigration, such as Penn State and the University of Arkansas, where students circulated a petition in support of the idea.
Student teams can debate the finer points of the immigration code each year at the nation's first moot court competition, begun by New York University two years ago. The University of California at Davis started a second contest this year.
In the past three years, students at the University of Maryland, George Mason University and Harvard University have founded immigration law groups. At AU, an Immigrants' Rights Coalition formed by law students in 2005 has 50 members and has hosted a conference on a new visa category and panels of day laborers and refugees.
"We're a country of immigrants, and yet we're putting immigrants out," said the group's co-chairman, Amalia Greenberg, 29, who emigrated from Venezuela at age 6. "It's a continuation of the civil rights movement, and it feels like it's in our hands to do something about it."
Professors say the immigration law boom is part of a broader explosion of interest in human rights and international law, spurred by today's globally minded students. Immigration is by no means the hottest law school topic -- criminal law and litigation remain hugely popular, and environmental law is a new favorite.
And although practitioners' ranks are growing -- membership in the American Immigration Lawyers Association has nearly doubled since 2003, to more than 11,000, 15 percent of whom passed the bar exam within the past three years -- the majority of students in immigration law classes will not become immigration lawyers, professors said. Many students said they might specialize in another area and do pro bono immigration cases on the side.
But there is a growing realization, students and professors said, that policies on issues such as asylum and due process are evolving as never before, particularly since the Sept. 11, 2001, terrorist attacks. A growing immigrant population also means that legal status often complicates what might have once been simple criminal or labor cases.
"It's not just that people think immigration is important, but they're seeing that it affects everything," said Hiroshi Motomura, an immigration law professor who will join UCLA in the fall.
Many students said their studies had underscored how thorny immigration is. Jennifer Khouri recently graduated from George Washington University Law School. As a student, she successfully argued at Arlington Immigration Court that an illegal immigrant from Colombia should be allowed to stay in the United States with her young son, a U.S. citizen. As proud as Khouri is of that victory, she is starting a job this fall as a U.S. Department of Justice attorney representing the government in immigration court.
"On both sides, the reaction is too emotional. . . . There's not enough actually looking at the numbers, empirical evidence about how immigrants are affecting the country," said Khouri, 27, the daughter of a Lebanese immigrant father and Cuban immigrant mother. "The reason I want to work for the government is because I want to push for the middle."
The topic's ultra-political nature frustrates some. Asha Allam, who recently took GW's immigration clinic, said the experience made her decide against the field because she thought the immigration system was unfair, in part because of documented disparities of approval and denial rates among immigration judges. Stalled federal immigration legislation also means lawyers can offer little aid to illegal immigrants, she said.
"Lawyers are telling a lot of their clients, 'There's nothing we can do for you right now,' " said Allam, 23, who plans to work in global trade in hopes that someday people will not have to migrate for opportunities. "That's not really legal advice," she said.
The challenges have only energized Karlie Dunsky, a GW law student. Unlike many of her peers, she had little experience with immigrants while growing up in Ohio. But she's set on a career in refugee and asylum law.
"I'm going to have to get used to my clients' claims being denied, but the first one is always hard," said Dunsky, 24. But, she said, "what makes immigration so compelling is that it's a human issue. . . . It's not some vague entity that doesn't have a face. It really motivates you."
**Story Link
"Immigration is becoming more and more complex, and it's going against immigrants rather than for them," said Kim, 27, a second-generation Korean American who took the Honduran's case as part of her immigration law clinic at American University's Washington College of Law. "There's a great need for lawyers."
A subject that three decades ago was a secondary, technical field delegated to adjunct professors is booming at law schools nationwide. Elective immigration law courses taught by tenured specialists are filling lecture halls, immigration clinics are expanding and student groups devoted to the subject are mushrooming.
The momentum is partly driven by a high-profile, rancorous immigration debate. But it is also the result of an era of mass immigration that has fueled demand from foreigners and businesses seeking help navigating U.S. immigration statutes and has created a generation of law students intimately familiar with the issue, often because they are children of immigrants or immigrants themselves.
"Immigration is just one part of a much broader story about globalization, of movement of goods and movement of people and movement of ideas, and what used to be a backwater of the law has become mainstream," said T. Alexander Aleinikoff, dean of Georgetown University Law School, who co-authored the first major immigration law casebook in 1985. "This is certainly a very, very hot topic."
Unlike undergraduates, law students do not pick majors, so there are no statistics on the number studying immigration law. But professors say there is no question about the explosion in interest.
When AU created an immigration division within its well-known human rights clinic three years ago, administrators struggled to fill it; now, as many as 32 students vie each year for 16 slots. "We have to beat them away with a stick," said Richard Wilson, a professor. Two years ago, the school added two more sections of a basic immigration law course.
At least 50 law schools offer immigration clinics, which usually give students the chance to represent indigent immigrants who have no right to court-appointed lawyers. More sprout each year: This year, clinics have been launched at the University of La Verne and Southwestern Law School in Southern California, as well as at schools in areas that have seen recent influxes in immigration, such as Penn State and the University of Arkansas, where students circulated a petition in support of the idea.
Student teams can debate the finer points of the immigration code each year at the nation's first moot court competition, begun by New York University two years ago. The University of California at Davis started a second contest this year.
In the past three years, students at the University of Maryland, George Mason University and Harvard University have founded immigration law groups. At AU, an Immigrants' Rights Coalition formed by law students in 2005 has 50 members and has hosted a conference on a new visa category and panels of day laborers and refugees.
"We're a country of immigrants, and yet we're putting immigrants out," said the group's co-chairman, Amalia Greenberg, 29, who emigrated from Venezuela at age 6. "It's a continuation of the civil rights movement, and it feels like it's in our hands to do something about it."
Professors say the immigration law boom is part of a broader explosion of interest in human rights and international law, spurred by today's globally minded students. Immigration is by no means the hottest law school topic -- criminal law and litigation remain hugely popular, and environmental law is a new favorite.
And although practitioners' ranks are growing -- membership in the American Immigration Lawyers Association has nearly doubled since 2003, to more than 11,000, 15 percent of whom passed the bar exam within the past three years -- the majority of students in immigration law classes will not become immigration lawyers, professors said. Many students said they might specialize in another area and do pro bono immigration cases on the side.
But there is a growing realization, students and professors said, that policies on issues such as asylum and due process are evolving as never before, particularly since the Sept. 11, 2001, terrorist attacks. A growing immigrant population also means that legal status often complicates what might have once been simple criminal or labor cases.
"It's not just that people think immigration is important, but they're seeing that it affects everything," said Hiroshi Motomura, an immigration law professor who will join UCLA in the fall.
Many students said their studies had underscored how thorny immigration is. Jennifer Khouri recently graduated from George Washington University Law School. As a student, she successfully argued at Arlington Immigration Court that an illegal immigrant from Colombia should be allowed to stay in the United States with her young son, a U.S. citizen. As proud as Khouri is of that victory, she is starting a job this fall as a U.S. Department of Justice attorney representing the government in immigration court.
"On both sides, the reaction is too emotional. . . . There's not enough actually looking at the numbers, empirical evidence about how immigrants are affecting the country," said Khouri, 27, the daughter of a Lebanese immigrant father and Cuban immigrant mother. "The reason I want to work for the government is because I want to push for the middle."
The topic's ultra-political nature frustrates some. Asha Allam, who recently took GW's immigration clinic, said the experience made her decide against the field because she thought the immigration system was unfair, in part because of documented disparities of approval and denial rates among immigration judges. Stalled federal immigration legislation also means lawyers can offer little aid to illegal immigrants, she said.
"Lawyers are telling a lot of their clients, 'There's nothing we can do for you right now,' " said Allam, 23, who plans to work in global trade in hopes that someday people will not have to migrate for opportunities. "That's not really legal advice," she said.
The challenges have only energized Karlie Dunsky, a GW law student. Unlike many of her peers, she had little experience with immigrants while growing up in Ohio. But she's set on a career in refugee and asylum law.
"I'm going to have to get used to my clients' claims being denied, but the first one is always hard," said Dunsky, 24. But, she said, "what makes immigration so compelling is that it's a human issue. . . . It's not some vague entity that doesn't have a face. It really motivates you."
**Story Link
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