Rejected three times, Elkhart family’s immigration options are narrowing
Posted: 01/16/2012 at 1:15 am
By: Tim Vandenack
Click here to view in a gallery.
Armando Paez checks on a food order at the Vine Restaurant in Elkhart 1/12/2012. ---- (Truth Photo By J. Tyler Klassen)
Armando Paez rings up a sale at the Vine Restaurant, Elkhart. 1/12/2011. (Truth Photo By J. Tyler Klassen)
Armando Paez talks with a reporter during a visit at the Vine Restaurant 1/12/2012. (Truth Photo By J. Tyler Klassen)
Now Armando Paez, a Colombian who lives with his family in Elkhart, waits, fingers crossed, hoping for permission, a decision — anything — that lets him stay put, prevents his deportation. His case comes up for consideration before an immigration official March 22, and while it’s not clear exactly what will happen, a review of the available records in his case suggests the clock is ticking and his options are narrowing.
“I don’t know,” said Paez, alluding to the possible outcomes at the March meeting, to be held in Chicago. “That’s why I’m stressing and hoping.”
He’s certainly not the only immigrant here in Elkhart, but his case offers a window into the complexities of immigration. Paez initially entered the United States on a visa that only allows transit through the country, not employment, though he later secured temporary work authorization as part of his asylum request. He and his family potentially face deportation, yet they’re well-regarded by many here in Elkhart and supporters laud them as industrious and productive members of the community.
Paez’s wife Marta works at a seat-belt factory, his two daughters, Ana and Maria, attend college and his son, Juan, is in middle school in Elkhart.
Paez, a long-time waiter at two Elkhart restaurants, entered the United States at Miami on April 10, 1999, with a C-1 visa, according to paperwork filed by the U.S. Department of Justice attorneys acting as respondents against him in his immigration case. C visas allow only for transit through the country, according to the U.S. State Department’s Bureau of Consular Affairs website.
On entry, Paez — who had been working for an Italian cruise line, apparently necessitating the C visa for visits to U.S. ports — traveled to Elkhart, invited by a passenger he had met on a cruise, Dominic Cataldo. He subsequently got a job at Antonio’s Italian Restaurant here, owned by Paul Cataldo, Dominic Cataldo’s nephew.
On Nov. 23, 1999, with tourist visas, his wife and three kids traveled here from their home in Bogota, Colombia.
The legal entry notwithstanding, Paez initially worked under hazy circumstances.
The USDOJ filing, challenging Paez’s request for asylum, says Paez stayed in the United States “longer than allowed by immigration officials.” Paez and Paul Cataldo, meanwhile, are vague about whether Paez had the proper paperwork to work here.
Paez, when asked, points to his C-1 visa, which, according to current U.S. immigration guidelines, contains no provisions allowing for work. Cataldo also points to the C-1 visa and Paez’s explanation at the time that he was pursuing U.S. citizenship.
“He said he was in the process (of seeking citizenship) and I didn’t pursue it further,” Cataldo said. Cataldo acknowledges that Paez didn’t have a Social Security card, at least initially, and said he didn’t put him on the payroll until he did.
Paez’s wife and kids, meanwhile, had permission under their tourist visas to remain until May 22, 2000, according to the USDOJ filing, but stayed longer “without authorization.” They were charged under immigration law with “removability” and later “conceded their removability as charged.”
In the meantime, on Oct. 7, 2002, Paez had filed for asylum with U.S. immigration officials. Asylum requests can take years to sort out and, according to the rules, applicants may file for permission to work — a Social Security card — pending a final decision.
“It takes a long time for this type of case to be adjudicated,” said Rosy Meza, an Elkhart immigration attorney not involved with Paez’s case. “They’re the most complicated cases.”
Paez and his family sought, and received, Social Security cards, Paez said. That has allowed them to live and work here legally, at least for the time being.
FEAR OF GUERRILLAS
At the heart of the matter thus far has been whether Paez meets the standards to be granted asylum, reserved for refugees and others who would face persecution in their home countries. Asylum recipients may typically apply for formal U.S. residency after a year and later, full U.S. citizenship, according to Meza.
Nearly five years after he filed it, on July 19, 2007, a federal immigration judge denied Paez’s asylum application. Paez appealed shortly thereafter to the Board of Immigration Appeals, an administrative body within the U.S. Department of Justice. The BIA affirmed the immigration judge’s decision on Oct. 28, 2008.
Next, Paez appealed to the U.S. Court of Appeals for the 7th Circuit, based in Chicago. On June 28, 2010, the court denied Paez’s petition.
Paez has based his asylum request on his links to the Liberal Party in Colombia and the possibility of reprisals from the Revolutionary Armed Forces of Colombia. FARC, as it’s known, is a leftist, anti-government guerrilla movement in Colombia that dates to the 1960s.
In 1989, FARC guerrillas kidnapped four of Paez’s colleagues from a Liberal Party office in Usme, a zone near Bogota, and warned them to steer clear of discussing politics with local farmers. They were released a day later, according to court papers. Since Paez’s in-laws own land in Usme and he would visit the locale and talk politics, the 1989 incident led him to fear that he, too, would kidnapped — or killed.
Land ownership “is socially visible and attacks against landowners by the FARC in its efforts to obtain control over land has been well-documented and recognized,” Paez’s Chicago lawyer, Maria Baldini-Potermin, said in a filing in the 7th Circuit appeals court. Furthermore, his in-laws’ land in Usme “is in a ‘red zone’ and located in a mountainous region, perfect for the FARC from a military standpoint.”
In turning back his request, though, the varied officials have questioned the danger Paez truly faces if he returns to Colombia.
“The Immigration Judge found Paez’s fear to be speculative, observing that Paez failed to provide any evidence of past mistreatment, or threats to himself or his family,” said the USDOJ filing. “Moreover, the Immigration Judge determined that Paez’s fears were ‘not sufficiently particularized to him,’ but rather ‘generalized fears that are faced by the general population of Colombia.’”
Complicating things, Paez made his initial asylum request more than three years after arriving in the United States. Such applications typically have to be made within a year, according to immigration law.
WORKING, STUDYING, WAITING
The next step in the process remains unclear.
Paez said the March 22 hearing is before an official from the U.S. Immigration and Customs Enforcement office, or ICE. He’s not exactly sure what’s at stake at the meeting and his lawyer, Baldini-Potermin, did not return a call seeking comment.
Meza, the Elkhart immigration lawyer, said she doesn’t know of any immigration cases that have been appealed past the 7th Circuit appeals court. However, she said ICE, even at this stage, may exercise “prosecutorial discretion” to at least prevent the Paez family’s deportation, considering things like their ties to the community and other factors.
Still, given the negative rulings from immigration officials and the appeals court, the family’s migratory status and ability to remain employed would potentially be in limbo.
Meanwhile, Paez keeps working and his kids continue their studies.
“For now, we’re waiting,” he said.