Closed Door Policy

Oscar Fuchslocher first came to the United States from his native Chile in 1989, as an exchange student at Ironwood High School in Glendale. He liked Arizona so much he came back the next year, this time as a visitor on a six-month visa.

The visa was renewed, but eventually expired. In 1992, Fuchslocher (pronounced FOOSH-locker) applied for political asylum, claiming he would be a target of political retribution if he were forced to return to Chile. That application was denied, and Fuchslocher was to be deported, but in 1995 the Immigration and Naturalization Service granted him a stay of deportation for a year.

About six months before that deportation date arrived, Fuchslocher married a United States citizen, Jennifer Mehall. He and Mehall had lived together in the Valley for a year; there was no question about the validity of the union, which INS has officially recognized.

Fuchslocher assumed he was eligible to become a permanent resident. On June 17, 1996, he asked the INS district director for an extension of his stay of deportation, citing extenuating circumstances--his new marriage.

The extension was denied. His appeal of that denial was denied. And denied. And denied.

On October 24, six INS agents showed up at Fuchslocher's home and placed him in custody. He remains in an INS detention facility.

Until very recently, Fuchslocher could have gone to federal court to challenge what certainly appears to be a misguided deportation effort. After all, he is legitimately married to an American citizen, and such a marriage does ordinarily grant an immigrant the right to reside here indefinitely.

Fuchslocher wants a Great Dane. And kids. He wants to finish fixing up the house he and his wife, Jennifer, own in central Phoenix, and to study at the Scottsdale Culinary Institute, to which he's already been accepted. Someday, Fuchslocher wants to open his own bistro.

Until then, he would like to continue working in the restaurant industry and volunteering as a judo instructor at the local YMCA. (Fuchslocher is a four-time national judo champion of Chile.)

But in the political heat of last year's election, Congress passed, and President Clinton signed, a law that stripped Fuchslocher and other non-citizens of the right to go to court in many immigration cases.

So before he can be a young husband, Oscar Fuchslocher has to be a national test case. Legal observers say his case could determine whether countless people trying to become Americans will be denied the due process of law that is fundamental to the idea that is America.

Oscar Fuchslocher v. Immigration and Naturalization Service (96-17114) apparently will be the first case heard at the appellate level to challenge the constitutionality of a law President Clinton signed on September 30.

That law cracks down on illegal immigration along the border and in the workplace, and provides assistance to those who will lose help under welfare-reform legislation passed last year. But the law also contains provisions that strip potential immigrants of their access to the U.S. court system to challenge INS decisions on deportation and other immigration matters.

The timing of the law's passage was not coincidental. Republicans attempted to use a harsh version of immigration "reform" as a wedge issue in the waning days of the political season. Political animal that he is, President Clinton didn't dare risk a veto of legislation titled "The Illegal Immigration Reform and Immigrant Responsibility Act" in the weeks before the 1996 presidential election.

The bill was aimed at border-state voters who were angry at the cost of illegal immigration--and at xenophobes across the country. Laura Ho, staff counsel for the American Civil Liberties Union, puts it simply: "It's very politically unpopular to stand up for quote, unquote, illegal immigrants."

And illegal immigrants can't vote.
Legal immigrants can--and, in fact, they did vote for Clinton in large numbers. But the provisions of the new law that have an impact on the constitutional rights of legal immigrants went all but unnoticed as Congress rushed to adjourn and then scattered to the hinterlands to campaign.

In a White House press release issued shortly after Clinton signed the immigration law, the president waxed eloquent about provisions that offer food assistance to needy immigrants and require sponsors of legal immigrants to take responsibility for their charges' well-being. He expressed pleasure that the new law did not include a controversial amendment that would have allowed states to refuse to educate the children of illegal immigrants.

"It strengthens the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system--without punishing those living in the United States legally," he stated.

That statement was--and is--false.
Clinton conveniently ignored provisions in the law that can strip would-be legal immigrants of a fundamental constitutional right: due process.

Before the new immigration law was passed, immigrants ordered deported by INS were able to seek relief through the federal courts. The new law, however, severely restricts that right, leaving an administrative agency--the immigration service, under the auspices of the U.S. Attorney General--with almost total discretionary power to deport immigrants.

Proponents of the law, including a Department of Justice spokesman, argue that it does not really limit immigrants' constitutional rights but merely streamlines existing law.