Closed Door Policy

A Chilean national's struggle against deportation raises fundamental questions about the constitutional rights of immigrants

"It [Congress] just made it very specified, what the procedure would be," says Joe Krovisky, a spokesman for the U.S. Department of Justice who refused to comment on the specifics of Oscar Fuchslocher's case.

But that explanation does not square with immigration facts or the letter of the law passed in September.

There appears to have been little need to "streamline" whatever access immigrants had to the federal court system. The immigration service's most recent statistics--from 1994--reveal that potential immigrants filed just 685 cases in federal court seeking to change a final INS order of deportation.

And the law clearly does eliminate the right of court access for several classes of potential immigrants, including those who are challenging a deportation order.

Opponents of the new law, including the ACLU and the American Immigration Lawyers Association, say that if it stands, the law will create a precedent-setting shift in the balance of power between the executive and judicial branches of government. Before passage of the law, the ACLU's Laura Ho says, "an independent judge--or a panel of judges--could decide whether INS was acting correctly, or legally.

"And now what Congress has attempted to do is take that away--which is unprecedented. There's always been judicial review of executive actions, because otherwise, if there isn't, the executive [branch] can do basically whatever it wants."

Fuchslocher's lawyer, Patsy Kraeger, knows this could be the case of her career and has taken it without charge. Her client, she says, has been denied the most fundamental of rights--the right of access to the courts, or due process.

Her argument is simple: By denying immigrants due process, the new law violates a number of provisions of the United States Constitution, including the Fifth Amendment, which states that no person "shall . . . be deprived of life, liberty, or property, without due process of law." And contrary to popular opinion, she observes, the Founding Fathers of the United States of America drew the Bill of Rights so it applied to people, not citizens.

Kraeger contends that her client exhausted all of his appeal options within INS and was still going to be unfairly deported. In November, she sued INS on his behalf in U.S. District Court in Phoenix. But the court threw the case out, ruling that it no longer had jurisdiction over such matters, under the new law.

Kraeger appealed to the Ninth U.S. Circuit Court of Appeals, which approved a temporary stay of deportation for Fuchslocher, allowing him to remain in the U.S. until his case is argued in March. Similar cases have been filed; Kraeger says Fuchslocher's will be the first to be argued at the appellate level, and thus could decide whether the new law is constitutional.

If the Justice Department prevails, immigrants' constitutional rights will be severely limited, Ho says. "Whatever rights that the government gives them are the constitutional rights that immigrants [will] have."

Arguments over the balance of power among the three branches of government--executive, legislative and judicial--are older than the Union itself. And the immigration bill passed last fall is not the first attempt by Congress to strip the courts of authority.

Even though it was a GOP initiative, Arizona's own Barry Goldwater--then a Republican United States senator--rose on the Senate floor to protest legislation in the early 1980s that would have limited the authority of the courts to decide cases regarding school prayer, busing and abortion.

"[The] frontal assault on the independence of the federal courts is a dangerous blow to the foundations of a free society," Goldwater said at the time.

That debate was widely reported, and the legislation went nowhere.
But this year, when Republicans sought to limit the court's authority, they did it stealthily, and in ways that affected a powerless group: immigrants. And the record shows that without access to the courts, that group will suffer.

In a study published in 1992 in the Stanford Law Review, researchers Peter H. Schuck and Theodore Hsieh Wang studied immigration litigation in U.S. courts between 1979 and 1990. They found that aliens prevailed in the courts about 30 percent of the time--meaning that three of every 10 INS decisions taken to court were overturned.

In her brief, now on file at the Ninth Circuit, Kraeger quotes a particularly harsh assessment of INS from an opinion written in 1995 by Judge Richard Posner, of the Seventh U.S. Circuit Court of Appeals:

"The proceedings of the Immigration and Naturalization Service are notorious for delay, and the opinions rendered by its judicial officers, including the members of the Board of Immigration, often flunk minimum standards of adjudicative rationality."

Oscar Fuchslocher was raised in an upper-middle-class household in Santiago. His father was a colonel in Chile's Air Force, and the family traveled the country extensively. Oscar enjoyed his time as a foreign exchange student in Glendale so much that the whole Fuchslocher family--Oscar, his parents and brother--moved to Arizona in 1990.

"It is a tradition in my family, the Fuchslocher family, that all the time they keep immigrating. They never stay in the same place," Fuchslocher says, adding that the family migrated from Germany to Chile more than 100 years ago.

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Is this law Racist? Does it specify brown people?Are the people who agree with this law racist?Are those who want this law enforced racist?The law says nothing of little "brown" people but it explains what is illegal entry. It's not very hard to understand. Why is this law "broken"? Why can it be selectively ignored?Illegal alien includes all people who entered illegally, could be Croation, Russian, Chinese, Irish, Canadians and yes even Mexicans. No one single race or people is referenced in the law. Under Title 8 Section 1325 of the U.S. Code, "Improper Entry by Alien," any citizen of any country other than the United States who:Enters or attempts to enter the United States at any time or place other than as designated by immigration officers; or Eludes examination or inspection by immigration officers; or Attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact; has committed a federal crime.Violations are punishable by criminal fines and imprisonment for up to six months. Repeat offenses can bring up to two years in prison. Additional civil fines may be imposed at the discretion of immigration judges, but civil fines do not negate the criminal sanctions or nature of the offense.Gordon could never understand this and has cost Pheonix and surrounding cities hundreds of millions to support the education, health and welfare of these illegal immigrants.

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