I live in Southern California, and am the father of school-aged children. Naturally, I go to Disneyland a lot. One of my favorite attractions in Disneyland is Mr. Toad’s Wild Ride. Patterned after Kenneth Grahame’s 1908 children’s book The Wind in the Willows, Mr. Toad’s Wild Ride places guests in early 20th century motorcars and takes them on a wild and twisting ride through the countryside of Victorian England, the narrow and winding streets of London, through a police station, a jury-less courtroom (where a powdered wig festooned judge with a booming voice declares the rider GUILTY!), a jail cell, and then Hell. The ride lasts about two minutes and ends twenty feet from where it began.
I’m also an immigration lawyer and member of the Southern California Chapter of AILA. In December of 2011, I took a new pro bono case through AILA’s Military Assistance Program. I met my new clients, Guillermo Garcia and Araceli Sanchez, in a Starbucks in Bullhead City, Arizona. They have been married for four years and have a three-year-old daughter. Mr. Garcia is a US citizen and Private First Class in the US Army Infantry; at the time of our meeting, he was on leave from his post in Germany. Ms. Sanchez is an undocumented immigrant and a DREAMer; a 2008 graduate of River Valley High School in Arizona, Ms. Sanchez was brought to the United States at the age of four by her parents.
During our meeting, the Garcia/Sanchez family and I made a plan. The plan seemed relatively straightforward: file a request for parole in place; after that had been granted, file an immigrant petition and adjustment of status application; and – once the adjustment was granted – file an expedited naturalization application for Ms. Sanchez pursuant to INA 319(b) as the spouse of a deployed service member. Once naturalized, Ms. Sanchez would join her husband in Germany and the family could live happily ever after.
On March 8, 2012, I mailed PFC Garcia’s parole request to the USCIS Phoenix Field Office. I received confirmation from the Postal Service that the package was delivered. I did not receive any reply from USCIS Phoenix. Given the rarity of this kind of parole request, I did not think USCIS’ muteness all that unusual. I expected that I would hear from them eventually.
On May 1, 2012, Ms. Sanchez’s wild ride began when a deputy of the Mohave County Sheriff pulled Ms. Sanchez over for a minor motor vehicle violation in Ft. Mohave, Arizona. When asked for a driver’s license or a Social Security number, Ms. Sanchez gave the deputy the only form of identification she had: a US Military Dependent Identification Card. When Ms. Sanchez was unable to produce a driver’s license (and de facto national identity card), or Social Security number (the de facto national identity number) the deputy inquired into Ms. Sanchez’s immigration status. The deputy then found reasonable suspicion to believe that Ms. Sanchez was unlawfully present in Arizona. Ms. Sanchez was taken into custody.
The sheriff handed Ms. Sanchez over to the Border Patrol. Border Patrol agents took Ms. Sanchez to Yuma, Arizona where they tried to bully her into accepting immediate, expedited removal to Mexico. (Keep in mind, Ms. Sanchez is a cancellation-eligible service member’s spouse with a parole in place application pending with USCIS). When Ms. Sanchez refused to sign the expedited removal order, she was served with a Notice to Appear before an Immigration Judge and transferred to an Immigration and Customs Enforcement’s detention facility in Eloy, Arizona.
Once ICE learned that Ms. Sanchez is the wife of a deployed service member, has no criminal history, and was attracting the attention of the media (including MSNBC, the New York Daily News, and the Wall Street Journal), she was promptly released from the hell that is the detention facility in Eloy. Claiming to exercise prosecutorial discretion, ICE released Ms. Sanchez and withdrew the NTA that the Border Patrol prepared and served. Ms. Sanchez’s wild ride ended three days later, some three hundred and eight miles from where it began.
There are three really interesting things to learn from Ms. Sanchez’s wild ride.
- According to the Arizona police training materials interpreting SB 1070, Ms. Sanchez gave the deputy “presumptive evidence” of lawful immigration status in the United States. The US Military Dependent ID Card Ms. Sanchez handed the deputy is “presumptive evidence” of lawful presence in the United States. The inquiry into Ms. Sanchez’s immigration status should have ended at the side of the road in Fort Mohave, but it didn’t. Arizona law enforcement officers have not read or understood their own SB 1070 training materials. Moreover, an Arizona law enforcement spokesperson told the Wall Street Journal that Ms. Sanchez’s status as a military spouse was “irrelevant”. This likely means that Arizona law enforcement also believe that other significant immigration-related facts that might impact a case are also “irrelevant.” Arizona police also likely think it “irrelevant” that someone who commits a minor traffic violation is a battered spouse, has a US citizen parent, has been in the United States for decades, has been a crime victim, or is fleeing persecution. Of course, immigration lawyers know that immigration law is quite complex, and many of those facts are highly relevant as to whether someone qualifies for immigration benefits. To wit: even though we all agree that Ms. Sanchez is not legally present in the United States, the issues are more complex and not black and white. For example, as the spouse of US military she is eligible to adjust her status and what happened to Ms. Sanchez never should have taken place. However, it did. Arizona has placed the duty of an immigration lawyer/inspector into the hands of, perhaps well-meaning but definitely under-prepared, police officers.
- Arizona police asked Ms. Sanchez for her Social Security number. There is no law requiring drivers to possess a Social Security number to drive the streets of America. Moreover, having a Social Security number does not mean that a person is lawfully present; nor does the lack of one indicate that someone is unlawfully present. Some US citizens do not have Social Security numbers, and many unlawfully present non-citizens have them. Some of my clients obtained their number before the Social Security Administration began checking immigration status upon issuance, or they overstayed an employment authorized non-immigrant status such as H-1B. The US Supreme Court’s recent decision in Arizona v. United States does not change the outcome of Ms. Sanchez’s experience with Arizona law enforcement.
- By declining to strike down section 2B of SB 1070, the Mohave County Sheriff retains the power to stop, detain, or arrest a person if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States. The difficulty is that many people, including Ms. Sanchez, who appear to be “unlawfully present,” qualify for immigration benefits of one form or another. It bears repeating. Immigration law is quite complex. A peace officer on the side of a road cannot determine these issues in ten minutes. Had Ms. Sanchez not possessed the intestinal fortitude to ask to see an immigration judge and endure confinement in Yuma and Eloy, she very easily could have been removed from the United States, despite her eligibility for immigration benefits.
Much like a Disney movie, I believe that Ms. Sanchez’s immigration experience will have a happy ending. Her immigration benefit applications are now on “the rocket docket.” USCIS is now very responsive, and Ms. Sanchez’s applications are likely to be adjudicated very promptly.
Given the poor treatment of a deployed service member’s wife by the Border Patrol, the reckless disregard for the law demonstrated by the local law enforcement authorities in Arizona, and the difficult policy considerations that the federal immigration authorities must weigh in determining whether they should remove an individual, immigration enforcement in Arizona is at best a Mickey Mouse operation.
Written by: Richard M. Green, AILA Military Assistance Program Task Force