Ghosts in the Machine

The bottom line around here, according to veteran immigration lawyers, is that the government is getting better all the time at sticking to the letter of the law and then some. To facilitate its mission, Homeland Security created two bureaus: the Bureau of Citizenship and Immigration Services, overseeing lawful immigrant and non-immigrant petitions, ‰ and the Bureau of Immigration and Customs Enforcement, which works with local and federal agencies to scrutinize visa issuance and border-crossing practices.

The citizenship bureau is no walk in the park, particularly for thousands of people who come to the United States to be with their families and then have to deal with the labyrinthine forms and processes that confound even English-speaking people with college educations. The unfortunate, the illegal and the ill-advised — most of whom come from Mexico and Latin American countries with no links to international terrorism — have an even bigger problem when forced to deal with the enforcement bureau, attorneys say. “Used to be that if a person came back 20 times they’d be deported 20 times,” says Dario Aguirre, a former INS agent who now represents federal detainees. “Now the government is looking to hammer people with permanent removal orders or federal criminal prosecution.”

Gilmer Leyva is banking on Katherine Owen’s ability to navigate this unyielding environment.

Granted just a half-hour to talk, Leyva and Owen hurry through their meeting as border patrol strolls by and occasionally peers into the interview booth. The air is warm and humid and Leyva does not like what he is hearing. His petition to become an immigrant relative may have died along with his mother, his attorney tells him. He can ask the judge in his case to re-evaluate his status but it may be out of the judge’s jurisdiction.

In any event the application will cost $2,000 — money he does not have.

“If the government would clean up this mess about his birth certificate then he would have been out of here by now,” Owen says.

During a recent telephone interview Leyva’s sister, Sonia Marlene Leyva Aspillaga, who lives in Anchorage, says that her mother simply made a mistake when she filled out Leyva’s birth certificate. “Maria Rosa” became “Rosa Martha,” as it is common to go by one’s second name, Sonia Aspillaga says. “She did a mistake,” Aspillaga says of her mother. “We use second names in our country. We call her Rosa every time.”

Owen says she is in the process of putting together a compelling case to present to the immigration judge, on August 7. She is both critical of the system for what Leyva has been through and idealistic regarding the potential for a just outcome. “This is the United States,” she says. “This isn’t some Third World country. We’re supposed to do better than this.”

Experienced local lawyers interviewed for this story say it sounds as if Leyva is being set up for permanent deportation, without the government bothering to find out the truth about his status. But Owen is convinced he is telling the truth. She gets angry at the suggestion that a deeper investigation of her client’s past is needed. “Why, because he is Hispanic?” she says in a telephone interview several days later. “I get those kind of questions all day in court. He applied for a visa he deserved. His mother, his four sisters, his two children all became legal residents or citizens. What’s the real reason they made up this crap about his birth certificate? He has no criminal record. He just came back into the country before his time was up.”

Owen, whose grandmother was a Mexican immigrant, says she would have come back too, if she hadn’t seen her children in five years. The government, not Gilmer Leyva, broke the law, she says. “They broke the biggest law of all,” says Owen. “They denied him the right to be in this country and to be with his family.”

When asked how she plans to defend Leyva, she says maybe someone in Congress will help her pressure officials here to take a closer look at the facts. Sworn affidavits from his siblings should help, Owen says. “I’m going to put up a fight,” she says. “I’m going to give 100 percent.

“If we lose him this time, he’s gone for good.”