Complications for Illegals With U.S.-Citizen Kids

Chess whiz, trombone player and aspiring engineer, 10-year-old Michael Gomez ranks among San Diego's most gifted students. Yet despite U.S. citizenship, the lifelong California resident may soon have to move against his wishes to Mexico.

Michael and his 13-year sister, Susan, also a standout student, are among a legion of American children whose present is precarious and future uncertain because their parents are illegal immigrants (search).

Their father and mother, Miguel Gomez and Guadalupe Venavides, have lived in southern California since 1989, working, paying taxes, but never obtaining citizenship. They now face deportation to Mexico, losing an appeal in mid-May in which they argued that such action would be devastating for their children.

By virtue of being born on American soil, Michael and Susan are full-fledged citizens who, in theory, could stay even if their parents must leave. In practice, however, the Gomezes won't consider splitting up — deportation (search) would be a family affair.

"They're trying to punish my wife and me, but they will end out punishing Michael and Susan," said Miguel, who has worked as a cook and school-bus driver in San Diego. "I told the judge it will destroy their spirit if they have to go to Mexico. What kind of education will they have?"

The Gomezes' case is notable because of the parents' solid employment record and their children's academic success. However, they are only one among many thousands of so-called "mixed-status families" in which the parents are illegal immigrants and at least one child is a U.S. citizen.

Researchers at the Washington-based Urban Institute (search) estimate there are 3 million children with U.S. citizenship and undocumented parents. Many such children — though no official figures exist — are forced to leave along with their parents as a result of federal enforcement efforts which result in roughly 15,000 deportations of illegal immigrants each month.

"You've got to feel for the families going through this," said Bill Strassberger, spokesman for the Department of Homeland Security, which oversees immigration.

"But, harsh as it may sound, you can trace the source of the problem to the parents' decision to come to the United States illegally," he said. "They had to know it was a dilemma they could face in the future."

Indeed, some advocates of tougher immigration laws feel families like the Gomezes have taken advantage of America unfairly.

"The parents have come in here and stolen residency and they're asking taxpayers to pay for their illegal behavior," said Dan Stein, executive director of the Federation for American Immigration Reform (search).

The Gomezes' case is being handled by an experienced San Diego immigration attorney, Lilia Velasquez, who is now preparing for a last-ditch appeal to the San Francisco-based 9th U.S. Circuit Court of Appeals.

But she is not optimistic, noting that tougher deportation procedures approved by Congress in 1996 have made it difficult for families like the Gomezes to get a waiver reversing what the government calls a "removal order."

The government has placed an annual cap of 4,000 on such waivers, and limits them to illegal immigrants who have been in the United States at least 10 years and can demonstrate that deportation would impose "exceptional and extremely unusual hardship" on a child or other close relative who is a U.S. citizen.

One result, lawyers and government officials said, is that immigration judges now have relatively little leeway to cancel deportation orders.

"There are more and more stories of these incredibly human cases, some of them truly wrenching, and there's literally no discretion," said Greg Gagne of the Executive Office of Immigration Review (search), which runs federal immigration courts. "Once you start the process, it goes into virtual automatic."

While the Gomez family is arguing that their two gifted children would suffer from a move to Mexico, Jose Luis Aguilar and his wife, Maria, are basing their challenge of a deportation order on the fact that their 7-year-old son, Jose Jr., is autistic.

The boy, who along with his 10-year-old sister is a U.S. citizen, receives a state-of-the-art mix of mainstream and special-education classes at his elementary school near San Diego, gets state-subsidized medical care and participates in a horseback riding program for autistic children.

The Aguilars, through their attorney, have argued that they could not afford any comparable programs for Jose Jr. in Mexico, where attitudes toward autism and treatment of it are far less advanced than in the United States.

"We've been told our son can lead a productive, independent life," Aguilar said. "We're not sure about that if we have to go to Mexico."

Aguilar entered the United States illegally on foot in 1993, and has had steady work since then with a construction company that offered to sponsor an application for permanent residence.

That application has been stalled for more than two years, however, and the parents instead have been ordered to leave.

"I'm very grateful to the United States — I've been here all these years, and I've been able to succeed, but now there's a threat to all our dreams," Aguilar said. "We're treated like delinquents; our children's future is at stake — that's a high price to pay."

The Gomezes and Aguilars were willing to discuss their cases in detail, and allow their names to be used, because they already are the targets of deportation proceedings.

Immigration-rights advocates say countless other mixed-status families live in apprehensive limbo, trying to build lives for themselves and their U.S.-citizen children yet constantly fearful that a single unexpected encounter with an immigration officer — on the street, at a shopping mall — could turn their world upside down.

For many families, life is even more complicated because there are older children who entered the United States illegally with their parents and younger siblings who are U.S. citizens.

"Maybe one sibling can go to college, get driver's license, go to work, while the other, perhaps one or two years different in age, is treated like a criminal," said Josh Bernstein of the National Immigration Law Center in Washington.

Tanya Broder, an attorney with the Law Center's Oakland office, said many undocumented parents — wary of deportation — fail to take advantage of health care services and other benefits that their U.S.-born children are entitled to.

"There is misinformation at every level," Broder said. "If people in welfare offices don't know the rules, how are immigrant families who sometimes don't speak English well going to know? Parents often aren't sure what's safe, what isn't safe."

Though many children of illegal immigrants enroll in public school, their parents may be reluctant to sign certain school forms or participate in school activities, advocates said.

"The parents feel that because they are undocumented, they shouldn't be raising concerns to the principal about problems their children are facing," said Christian Ramirez, who oversees immigrant programs at the American Friends Service Committee (search) office in San Diego.

The Gomez family hasn't had that problem. Their children have flourished in San Diego classrooms, and one of Michael's teachers at the Oak Park School Music Conservatory has written in support of their legal battle.

Michael scored in the top 1 percent on a standardized intelligence test and was accepted into an elite seminar program for gifted students in which class size is limited to 20.

"I like to build things," Michael said, who thinks he might want to be an engineer someday, developing robots.

The Gomez parents came to the United States separately 15 years ago from their home towns in the region around Acapulco — Miguel crossing the border on foot, Guadalupe entering with a temporary visa that she overstayed.

Their family speaks English at home, and neither Michael nor Susan are proficient in Spanish. Neither child has ever been to Mexico — their only contact with grandparents has been by phone.

"I don't like to think about it," Susan said of the threatened move to Mexico. "We don't know how to study in Spanish, so we'd have to start all over again. I don't know if we'd be able to go to college."

Susan and Michael have sent handwritten appeals to Sens. Barbara Boxer and Dianne Feinstein, both D-Calif., asking for help, though Velasquez says such appeals are a longshot.

Susan also has sent e-mails to the White House, asking President Bush for help and evoking his slogan, "No Child Left Behind." (search)

"We're feeling like we're getting left behind," she said.

Unlike many other immigrants who have faced deportation, the Gomezes were not caught — they turned themselves in to authorities on the advice of their previous lawyer, who wrongly predicted that the children's achievements would convince an immigration judge to grant the parents permanent residence.

"They acted in good faith, thinking they had such a strong case, and what they got is a slap in the face," said Velasquez. "Anyone who looks at this family can see they're good people, making a positive contribution to society. Why can't they stay?"

There may be no sweeping solutions to the dilemmas facing mixed-status families.

Even advocates sympathetic to the plight of America's estimated 9 million illegal immigrants do not argue that legal status should be bestowed automatically on those who bear children in the United States. But they would like to see laws changed to allow more discretion to immigration judges, so that families like the Gomezes and Aguilars would have a better chance of staying.

"Blended families being split apart, forced to live underground — it's a symptom of an immigration system that's totally broken," said Judie Golub of the American Immigration Lawyers Association.

For government officials who deal with illegal immigration, it's a question of enforcing laws enacted by Congress — a task now tinged with the additional security concerns arising from the terrorist attacks of Sept. 11, 2001.

"These families are illegally doing what you'd want these people to do — contributing, trying to build a better life — and then they come up against the law," said Greg Gagne. "How much do you wink at it?"

The Federation for American Immigration Reform has suggested that Congress consider changing the long-standing practice of automatically granting citizenship to any child born on U.S. soil. But such proposals have made little headway in Washington.

"We have always recognized that persons born here are citizens —we're a nation based on constitutional values, rather than blood and ancestry," said Lucas Guttentag, head of the American Civil Liberties Union's Immigrant Rights Project. "The idea that everyone can be an American — it's part of our whole conception of our country and ourselves."