September 3, 2003
Should an undocumented Mexican woman be granted legal residency in the United States because her daughter—a U.S. citizen—requires special education that might be unavailable if the family is forced to move to Mexico?
“No” is the answer the Board of Immigration Appeals of the U.S. Department of Justice gave last month in its decision in just such a case. The board issued its verdict nearly 11/2 years after an immigration judge had reached the opposite conclusion.
In using her daughter’s need for special education as part of her defense, Maria Soledad Lopez de Vidriesca cited a law that permits someone who has lived in the United States for at least 10 years to request a waiver of deportation because being forced to leave the country would produce “exceptional and extremely unusual hardship” for an immediate family member. That family member must be a U.S. citizen or legal permanent resident.
Ms. Vidriesca’s 10-year-old daughter, Berta, was diagnosed with a learning disability by public school personnel in the Washington state farming community where the family lives.
In March of last year, an immigration judge ruled in Ms. Vidriesca’s favor. But the U.S. Department of Homeland Security, which encompasses the former Immigration and Naturalization Service, appealed that decision.
In its Aug. 18 ruling, the Board of Immigration Appeals agreed with the federal agency. The hardship that Berta might experience with her mother’s deportation, it said, did not warrant allowing her mother to stay in the United States.
The board, however, recommended additional proceedings in immigration court for Ms. Vidriesca to be considered for “voluntary departure” instead of deportation. Unlike deportation, voluntary departure doesn’t bar someone from re-entering the United States for at least 10 years.
The August decision “reflects the fact that the board doesn’t have any sympathy for individuals in the situation of Maria Vidriesca and discounts the hardships that her children will face,” said Bob Pauw, the Seattle-based immigration lawyer representing Ms. Vidriesca. Depending on the outcome of the upcoming proceedings, his law firm may return to the immigration-appeals board to appeal its decision, he said.
Waivers a rarity
Immigration lawyers say that waivers granted because of possible hardship to a family member are rare and have become more so under tighter immigration provisions enacted by Congress in 1996.
Judy C. Flanagan, an immigration lawyer in Phoenix, said Mr. Pauw’s use of special education to try to show hardship was a great idea. “You have to be creative in these things and put as much forward as you can,” she said.
Ms. Flanagan said immigration lawyers have little to go on as to which arguments for “exceptional and extremely unusual hardship” will be convincing to the immigration-appeals board because it has so far selected only three legal cases to set “precedent” for the 1996 standard for hardship.
Because the Vidriesca decision is not among them, said Mr. Pauw, nothing precludes him from bringing up the issue of special education in cases of a similar nature.
Greg Gagne, a spokesman for the board, concurred, noting that the board chooses cases as precedent when it wishes to establish a basis for an interpretation of the law or circumstances that are then applicable to other cases. He declined to comment specifically on the Vidriesca decision.
Unusual hardship?
Law-enforcement officials discovered that Ms. Vidriesca was living illegally in the United States when they visited her home to arrest her husband on drug charges. She has a son, 7-year-old Raul, and two daughters, Berta and 11-year-old Maria, all of whom were born in the United States.
Ms. Vidriesca told Mr. Pauw and the immigration court that she did not know whether her husband was involved in illegal activities. In a telephone interview last month, Ms. Vidriesca, who speaks only Spanish, said that her husband had been forced to return to Mexico, and that she was in the process of divorcing him.
Mr. Pauw argued in immigration-court documents that Berta, who has a learning disability, would experience difficulties should she not have access to special education—a likely occurrence, he said, if the family returns to Ms. Vidriesca’s hometown in rural Jalisco, Mexico.
In fact, though, according to the appeals board, when Mr. Pauw made that argument during an immigration hearing in March 2002, Berta hadn’t been placed in a special education program, even though she had been diagnosed as needing one.
Ms. Vidriesca said in an interview last week that Berta had just started to receive special education services in school at the time of the hearing.
In the federal appeal, a Homeland Security Department lawyer, Gregory E. Fehlings, wrote that 13 percent of students in the United States receive special education, and that children with learning disabilities make up the largest category of those children. (The National Center for Education Statistics reported this year that 12 percent of the nation’s schoolchildren are in special education, and 46 percent of that group has specific learning disabilities.)
“Therefore,” the federal lawyer argued, “it would be incorrect to say that Berta’s learning disability is an ‘exceptional and extremely unusual hardship.’”
The Board of Immigration Appeals reiterated that argument in its decision last month.
Immigration-court documents for the Vidriesca case include extensive debate about Mexican schools’ ability to provide special education. In its decision, however, the appeals board essentially dismissed the argument: “Even assuming the record established that Berta could not receive ‘special education’ in Mexico, that alone would not be a basis for concluding there is exceptional and extremely unusual hardship.”
Meanwhile, Ms. Vidriesca is still hanging on to the hope that she’ll be able to stay in the United States. As she understands her situation, her lawyer will argue her case in still “another court,” and she’ll need to provide additional information about her children.
The 32-year-old farmworker picks apples, cherries, and pears for a living, and she has been waiting to resume work after being laid off for a few weeks.
Ms. Vidriesca said she worries about what will happen should she and her children return to Mexico, where it is more difficult to find work. And her Mexican village wouldn’t be able to offer her children the same quality of education the schools in the United States do, she said.
Last week, her daughters began 5th grade at a public elementary school in their town, Sunnyside, located about 25 miles southeast of Yakima, Wash., which is a new school for both of them.
“I like the school here,” Ms. Vidriesca had said in an interview before the immigration-appeals board issued its decision. “For 11 years, things have gone well.”
Vol. 23, number 1 - © 2003 Editorial Projects in Education
Education Week - American Education’s Newspaper of Record
Topic:
Legislation & Policy