Feds turning up the heat - Immigrant son won't lose rights, U.S. says
By Oscar Avila
Copyright © 2006, Chicago Tribune
Published September 8, 2006
The U.S. government and Elvira Arellano's legal team escalated their skirmish Thursday over an unusual federal lawsuit contending that to deport the undocumented immigrant would violate her young son's rights.
Attorneys for 7-year-old Saul Arellano say his constitutional rights would be violated if he is forced to return to Mexico with his mother even though he is a U.S. citizen by birth.
Prosecutors detailed their counterarguments in a motion filed Thursday to dismiss the case, insisting that Saul would not lose legal rights by his mother's deportation.
Arellano has taken refuge in a Humboldt Park church since defying a government deportation order Aug. 15, creating a standoff that has generated international notoriety.
U.S. District Judge Amy St. Eve said Saul Arellano's lawsuit raises "novel issues." Normally, illegal immigrants contest their own deportation orders instead of having their U.S. citizen children become plaintiffs, experts say.
Legal observers and advocates on both sides of the immigration debate are closely watching the lawsuit, which could affect the 3.1 million U.S. citizen children with at least one parent living here illegally. Some say the lawsuit is a long shot but could have political benefits.
"The courtroom is only one arena in which this lawsuit is going to play out. There is also the political arena," said Rev. Walter Coleman, pastor of Adalberto United Methodist Church, where Arellano has taken refuge.
Arellano, a well-known activist for undocumented immigrants, and the government have been in a stalemate since she took refuge at the church. Arellano said she is not leaving the church. Immigration officials say they don't plan to enter the church to get her even though she is a fugitive.
For now, Arellano's hopes rest on Saul, who had already taken center stage at sympathetic rallies, quietly playing with a Spiderman action figure or a TV microphone cord.
Arellano said she does not want to take Saul to Mexico because she fears that he will return to the United States as she did: with no knowledge of English and little formal education. Arellano said she has never seriously considered leaving her son behind either.
Federal prosecutors, in their court filings Thursday, said allowing Arellano to stay in the U.S. because of her son would grant her a benefit that Congress never intended. They implied that Arellano was hypocritical in turning to the court after ignoring the government's orders.
"Ms. Arellano should not be permitted to ignore the law and yet use the law through the means of a legal fiction by challenging the order through her son," prosecutors argued.
Prosecutors said they considered but rejected a plan to grant Arellano a temporary stay of deportation while her son's case is heard.
Joseph Mathews, attorney for Saul, said Arellano had been willing to wear an ankle bracelet or observe a curfew if she could be protected from deportation while the case is heard.
"I am disappointed in [the government's] decision, but I understand it," Mathews said. "They have a job to do, and they are doing it."
Prosecutors said legal precedents work against Arellano, and many experts tended to agree.
David Martin, a law professor at the University of Virginia and former counsel for the Immigration and Naturalization Service, said he would be surprised if a judge agrees with the boy's claim.
"Some people's knee-jerk reaction is that you can't force a U.S.-citizen child to live somewhere else," Martin said. "This isn't really forcing him. Technically, they aren't deporting the child."
Muzaffar Chishti, director of the non-profit Migration Policy Institute's office at New York University School of Law, agreed that Saul's rights would be violated only if the government was ordering him to leave. In this case, Arellano is choosing to take him to Mexico rather than leave him in the U.S. with a guardian.
"It's a tragic human case but not a very compelling legal issue," Chishti said.
Even if Arellano's strategy doesn't hold up in court, some legal observers think her lawsuit could have political value in publicizing the situations of families like hers.
"This reflects the fact that our immigration laws are not accomplishing what they set out to, which is family unification," said Mary Meg McCarthy, director of the Chicago-based National Immigrant Justice Center.
Critics say Arellano's rhetoric and legal tactics show how cynically many illegal immigrants use their U.S. citizen children as protection from their lawbreaking.
For some illegal immigrants, their children could eventually provide a legal window. When the children turn 21, they can petition for legal status for their parents living here illegally although the process is not easy.
Those children gained U.S. citizenship through the 14th Amendment, ratified in 1868 mainly to reverse pre-Civil War legal barriers against African-Americans. The amendment states that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
A growing number of congressmen want to strip the citizenship rights of the U.S.-born children of illegal immigrants. U.S. Rep. Nathan Deal (R-Ga.) sponsored a bill last year to change the practice and received nearly 100 co-sponsors, almost all Republicans.