Former Chilean president Augusto Pinochet stands charged of murder, torture and kidnapping, but even he has access to the British court system as he fights his extradition to Spain. That's better treatment than another Chilean, Oscar Fuchslocher, is getting in the United States. Fuchslocher, who has been ordered deported by the Immigration and Naturalization Service, will never get his day in court.
Chile is Fuchslocher's homeland, but America--specifically, Phoenix--is his home. Here remain his wife, his parents, his friends, his dogs, his cars, his house, his unopened Christmas presents, and, possibly, his right to return to this country.
Earlier New Times coverage described how Fuchslocher has been married to Jennifer Mehall, a U.S. citizen, for almost three years, and has been unable to convince the INS to let him stay here with her--all because he didn't file the right paperwork at the time of their marriage.
Because of a federal law passed in 1996, Fuchslocher has no legal recourse against the INS decision.
The law stripped the courts of the authority to review INS decisions. That means Fuchslocher and other would-be Americans can't exercise one of the most basic rights granted to people in this country, the right to due process, or judicial review.
The new law also made it harder for someone like Fuchslocher to re-enter the U.S., barring deportees from returning to the country for up to 15 years.
Oscar Fuchslocher decided to challenge the new law, to win himself the right to argue his case in court. He found an attorney who took on his case pro bono. Oscar Fuchslocher v. Immigration and Naturalization Service was one of the first such challenges filed, so national immigration experts, civil liberties advocates and government officials have followed it and a handful of others closely as test cases.
Many legal authorities think the law needs fixing. Roxana Bacon, a Phoenix attorney, has taught immigration law at the Arizona State University College of Law for the past decade. Since the 1996 law passed, the entire class period she used to devote to issues surrounding judicial review has been reduced to just 10 minutes. There's no reason to teach the concept anymore, Bacon says, because it's been almost completely eliminated from immigration law. And that, she adds, is a serious challenge to the constitutional rights of foreign nationals like Fuchslocher.
If you're the INS, says Bacon, "you don't want a court being persuaded by the humanity or equities of a particular case."
Earlier this month, Fuchslocher's case flunked the test. U.S. Supreme Court Justice Sandra Day O'Connor ordered Fuchslocher deported. So Oscar won't get to explain to a U.S. judge that he's a loving husband, a judo champion, a law-abiding guy who simply screwed up on some paperwork.
Oscar and Jennifer will celebrate Christmas separately, pondering their uncertain future.
This won't be the first holiday season Oscar and Jennifer Fuchslocher have spent apart.
I first met Oscar in 1996, a few days before Christmas. ("Closed Door Policy," January 9, 1997.) The INS was holding him in Florence, threatening to deport him as soon as the paperwork could be processed. Fuchslocher's case is complicated, but boiled down, it comes to this: Even though he and Jennifer had been legally married in January 1996, they didn't file the proper paperwork in time to keep his earlier deportation order from going into effect. Fuchslocher was supposed to leave the country in June 1996; after his marriage, he says, he assumed the deportation order was moot. By the time he realized he was wrong, INS agents were looking for him. He initially avoided them by staying with friends while he tried to untangle his legal mess.
That made him a fugitive from justice, according to the INS, who finally took him into custody in October 1996.
Fuchslocher found Patsy Kraeger. A Phoenix immigration attorney, Kraeger is accustomed to clients who screw up simply because they don't understand INS' byzantine system.
Fuchslocher waited in Florence, passing the time by ripping black elastic from his socks and crocheting it into crosses for Christmas presents for Jennifer and his friends. Kraeger, meanwhile, was busy negotiating a maze of immigration rules, regulations and laws, finding a loophole for Oscar to slip through. She was successful, and he returned home to Phoenix in early 1997, pending the final outcome of his case.
Kraeger asked the Ninth Circuit Court of Appeals in San Francisco to review the case. The court came back with a curious response, agreeing to hear arguments on the judicial review matter but keeping in place the INS plan to deport Fuchslocher in the meantime.
If Fuchslocher were to be deported, the judicial review appeal would become moot. So Kraeger appealed to the U.S. Supreme Court, again asking for a stay of deportation pending the outcome on the appellate level.
Two weeks ago, Justice O'Connor ruled against Fuchslocher's request for a stay of deportation. The INS moved in, ready to deport him.
Kraeger acted fast, filing a motion in U.S. District Court here in Phoenix, again arguing that Fuchslocher had been denied due process because he'd never had the chance to argue his case before a judge, but raising new elements in that case, to avoid repeating the case that had gone before O'Connor.
