Red Hot Chile Paperwork

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.

The U.S. Department of Justice flew a lawyer in from Washington, D.C., for the occasion. Judge Roger Strand heard arguments December 8.

Kraeger had warned Fuchslocher and his family that he would likely be taken into custody after the hearing. It was an emotional parting. Friends, family, even a priest packed Fuchslocher's side of the courtroom, many wearing red, white and blue ribbons pinned to their lapels. Oscar hugged Jennifer for a long time, then kissed her on the forehead before walking out of the courtroom escorted by six federal agents. Fuchslocher was returned to Florence to await Judge Strand's decision. Even the court staffers were choked up.

Shortly before he was taken into custody, Fuchslocher told me he's been in limbo the past two years since we met, unable to work or go to school, pending the outcome of his case. He and Jennifer have waited to have kids.

"Can't do it. We really want 'em, but we can't do it. Can't put kids through that," he says, his Chilean accent Americanized by so many years in the U.S.

"I don't want to leave," Fuchslocher continues. "I tell you that much. Here's my life. My friends, my family, my in-laws; we had our huge, big wedding. I don't feel connected to Chile anymore."

In the U.S., there's the chance to work and go to school at the same time. In Chile, Fuchslocher says, he would have to work at menial jobs just to make ends meet. He's 27. He wants a career. "So basically I'd be working, working, working, and I wouldn't be able to make something happen for Jennifer and I. So it will be very, very hard."

He estimates it would be at least a year before Jennifer could get their affairs in order, pay off the bills and sell the house, and join him in Chile.

"I can still get around down there, it won't be a problem," he says. "But it's just the life issue. My life is here. I have a house; I have debts; I got bills, cars, dogs, name it. All my in-laws, all my friends, they're all here. It's like . . . you know the movie Tarzan, where they took him out of the jungle and brought him into the city. That's basically what I would look like.

"It's pretty sad, but like the last time, I have very high hopes."

Last Friday, Judge Strand denied Kraeger's motion. Oscar Fuchslocher should be deplaning in Santiago sometime this week.

Once in Chile, Fuchslocher can immediately apply to come back to the U.S. But, thanks to the 1996 immigration law, getting back in may not be easy. A provision of the law bars a deportee from reentering the country for 10 years.

By law, Fuchslocher can only apply for a waiver to that provision at the U.S. consulate office in Santiago. If the consulate denies his application, he's out of luck; State Department decisions are always final and not subject to judicial review.

Meanwhile, once Fuchslocher's out of the country, his judicial review appeal becomes moot. And the 1996 law won't be tested by his case. His victory would have stripped the INS of significant autonomy. But similar cases now on appeal at the U.S. Supreme Court will likely soon force a decision on whether INS rulings are subject to judicial review.

Fuchslocher's lawyer is certain of one thing: The INS never wanted his case to be the one heard in the courts. His would have been one of the better cases because he cuts such a convincing all-American profile.

"He's very factually sympathetic," Kraeger says. "Here you have a nice, clean-cut young man who's married to a U.S. citizen, who hasn't hurt anybody."

All along, INS officials have tried to placate Kraeger and Fuchslocher, by telling them it will be a snap for Fuchslocher to get the waiver to come back into the country. Kraeger's not so sure; the threshold is pretty high. Fuchslocher will have to demonstrate that Jennifer will endure extreme hardship if he is not allowed to return.

Look on the bright side, Oscar. At least Pinochet isn't in Chile.

Contact Amy Silverman at 229-8443 or at her online address:

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