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.
"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.
Fuchslocher liked Chile, but says it was very difficult to go to school and pursue his judo interests at the same time.
"When we got here, we started from bottom. I mean, we didn't have anything," he recalls.
Fuchslocher volunteered at the local Boys and Girls Club and the YMCA, teaching judo, and his high school friend Bobby Hunt got him a job where he worked, at the Chili's restaurant at 20th Street and Camelback in Phoenix.
There, Fuchslocher bused tables and washed dishes. And met Jennifer Mehall, a waitress.
Eventually, he, Bobby and Jennifer all took jobs next door at Coyote Springs Brewing Company, a microbrewery/restaurant. There, Fuchslocher worked just about every position in the place.
Oscar and Jennifer began dating.
Was it love at first sight?
"No, I didn't even like him when I first met him," Mehall says, giggling. She's sitting in the living room of the Fuchslochers' small house in Phoenix. The home is ramshackle, but in a whimsical way. Outside, the paint is peeling, and the winter lawn never really came up, but the inside is full of fat candles and throw pillows. Clean white drapes hang from curtain rods fashioned from tree branches.
Mehall recalls Fuchslocher's first days at Chili's.
"He used to work in the kitchen, and there was a garden hose that they'd spray down the entire kitchen with. And I was out working one night . . . and I come back to the kitchen--my hands were full, plates everywhere--and he takes out the hose and just starts spraying."
Slowly, Fuchslocher's obnoxious behavior turned goofy and fun, and the two became friends. Then they went to a George Strait concert, with dancing afterward.
"That was the first time I knew that he was it, finally," she says. "After our first date, he kinda moved in."
She laughs. "One tee shirt at a time."
They lived together in an apartment for about a year, then bought their house together in late 1995. They had discussed marriage for months, and then one day Mehall came home from work exhausted, and fell asleep in the bedroom.
"When I woke up, there was a ring and a rose, right by the bed," she says.
They were married January 22, 1996, by a justice of the peace, with family and Bobby Hunt present. With the end of Fuchslocher's stay of deportation looming, Mehall filed with the immigration service for recognition of their marriage, which, she thought, would allow Oscar to stay in the U.S. It was granted in May.
When immigration officers started showing up that summer, Oscar went to live with a friend, while he tried to fight his case through INS' administrative channels.
Then one day INS found Oscar at home.
Since that day--October 24--Oscar Fuchslocher has resided at the Immigration and Naturalization Service Processing Detention Facility in Florence. "Processing Detention Facility" is just a fancy way of saying "jail," but Fuchslocher is glad he's not up the road at the Arizona State Prison. Or back in Chile.
If Fuchslocher hadn't misplaced his passport--he says he couldn't find it when INS came calling--he would have been sent south immediately. But his deportation was delayed while INS officials sought travel papers from the Chilean consulate in Los Angeles. Meanwhile, Patsy Kraeger had time to intervene.
In November, she sued INS on Fuchslocher's behalf in Federal District Court. Kraeger secured a temporary stay of deportation from the Ninth U.S. Circuit Court of Appeals, which will last until his appeal is heard.
That won't happen until March.
The food's not so bad in the detention facility, Fuchslocher says during an interview the Friday before Christmas. He's been reading Anne Rice novels, and has passed the time by ripping the black nylon cord from his underwear and socks. With the cord, he crocheted small crosses for his wife, Jennifer, and friend Bobby.
Fuchslocher is the four-time national judo champion of Chile, but he wouldn't dare practice his passion in the immigration lockup. That would be asking for a fight. He lifts weights, plays chess, and waits.
Across the dank hallway from the tiny cubicle where Fuchslocher sits for an interview, someone has scratched "FUCK THE COUNTRY USA" into the malt-colored paint. It wasn't Fuchslocher. He's not angry. Confused, maybe, but not mad.
In the six years he's lived in the United States, Fuchslocher has become fluent in English. He's far from dumb. But like most people, he has difficulty comprehending the byzantine structure of INS, let alone the nuances of recently passed American laws. All he knows is that he doesn't get to wake up next to his wife.
If Fuchslocher is deported, he will be barred from returning to the United States for three to 10 years, Kraeger says. The waiver that would allow him to return quickly is very difficult to secure, she says, and if he's deported, there's no guarantee he would be granted entrance into the country again. Ever.
Certainly, there is no guarantee Oscar Fuchslocher will not be deported, even if he gets to argue his case before a district court judge. But he says all he wants is his day in court.
"I know that deep in my heart I'm not going back. There's no way," he says.
"Because I have done nothing wrong, and I can prove to the judge that I have done nothing wrong. If they just give me a chance to speak what I have to say to them, of what I've done in my life, there's no reason why they should send me back.
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