Alien Victory

Appeal court affirms federal judges' right to review immigration decisions

Oscar Fuchslocher is still behind bars at a U.S. Immigration and Naturalization Service detention center in Florence, but a federal court decision means he should be reunited with his wife in Phoenix as early as this week, according to Fuchslocher's lawyer, Patsy Kraeger.

Fuchslocher is a Chilean citizen who has been detained by INS pending review of a federal law passed last September that some legal experts say denies immigrants due process ("Closed Door Policy," January 9). Simply put, the law makes INS decisions final, and does not allow immigrants to bring their cases to federal courts.

Fuchslocher married a U.S. citizen months before INS began to try to deport him. He says he's here legally.

The February 26 decision by the Ninth U.S. Circuit Court of Appeals does not address the facts of Fuchslocher's case. But what it does say is that--contrary to arguments made by Department of Justice lawyers--federal district courts do, in fact, have jurisdiction to review INS decisions.

The Ninth Circuit ordered that Fuchslocher's case be heard before April 1.
Department of Justice spokesman John Russell refused to comment, except to say that government lawyers "are waiting to litigate this in district court."

Laura Ho, staff counsel for the American Civil Liberties Union in San Francisco, says, "It's a great decision!"

Ho and other immigration attorneys have been monitoring Fuchslocher's case, which was considered a possible national test case regarding the constitutionality of the law--specifically, whether it violates the Fifth Amendment right to due process.

The Ninth Circuit decision is only two paragraphs long, and does not directly address the issue of constitutionality. The court did not publish the decision, so this case does not officially set legal precedent, Ho says.

But, she adds, "It does give us an indication of what would happen if the case does go up to the Ninth Circuit."

Oscar Fuchslocher (pronounced FOOSH-locker) first came to the United States from his native Chile in 1989, as an exchange student at Ironwood High School in Glendale. He returned the next year as a visitor, with a six-month visa.

The visa was renewed, but it eventually expired. In 1992, Fuchslocher applied for political asylum. That application was denied, and Fuchslocher was to be deported, but in 1995 INS granted him a yearlong stay of deportation.

About six months before that deportation date arrived, Fuchslocher married a U.S. citizen, Jennifer Mehall. The two had met years before, working at a Chili's restaurant in Phoenix. 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 took him into custody. When Kraeger attempted to bring her client's case to district court in Phoenix, it was thrown out, based on the new federal law.

She appealed to the Ninth Circuit, which made its decision last month.
Kraeger says she anticipates her client will be released once the court hears the facts of his case.

"He [Fuchslocher] will have his day in court, which is what he wanted," Kraeger says. "When they [the court] hear the merits of the case, I think they'll realize that this whole thing has been ridiculous.

 
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