Hearts, Flowers, and Violins for an Illegal Alien’s Sturdy Father

By David North on October 11, 2013

This is a story about a reasonably healthy, 65-year-old man. Born in China, he works full time in the United States, owns a restaurant and (assuming that he has paid his social security taxes) is covered right now by Medicare and is about to start receiving social security benefits.

He is thus in better financial shape than many other Americans of his age. Further, he is legally present in the United States and has been here for 24 years. He could become a citizen if he wanted.

He says he has high blood pressure and high cholesterol and has leg pains, but this is true of large numbers of people his age. (I am more than ten years older, work full time, and have similar symptoms – all under medical control.)

So, is this one of those glowing immigrant success stories that we see so often?

No, it is the portrait of a man who is regarded as so needy by our government that it would be, according to one of our immigration courts, “an extreme hardship” if the man’s illegal-alien son were deported. The man, who is nameless thanks to that court’s privacy policies, currently lives with his wife, his son, his daughter-in-law, and his two grandchildren. There is an implication of another son, or sons, but the judgment is otherwise silent on them.

Presumably if this son were to be deported, his wife and children would also leave the country, and the 65-year-old would be a money-making, married, fully-insured person, but an empty-nester; he and his wife rattling around in a suddenly uncrowded house. (She may be employed as well, we are not told anything about her.) A lot of Americans are in this couple’s situation, but many of those are neither employed nor business owners, and he is both.

Alternatively, the son could leave the country and his spouse and children could stay here with the 65-year-old; no one knows how that would play out. There are plenty of three-generation households with these characteristics in this country.

Now his hours may be long – I suspect he is the restaurant’s cook – and his income may not be very large, but he is self-supporting and is certainly not bedridden (or his lawyer would have told us that).

The son, meanwhile, also China-born, has been illegally present in the United States since 1996, having arrived carrying a photo-substitute passport, a serious immigration law violation. Meanwhile, the son has acquired a citizen wife and two citizen children. Why it took the government 17 years to seek to deport to him is not explained.

In response to the threatened deportation, the son sought a waiver of inadmissiblity from the USCIS office in Atlanta, the staff denial of his motion was appealed to the USCIS in-house appeal’s entity, the Administrative Appeals Office, and AAO ruled in favor of the son on the grounds that the staff had not given sufficient attention to the plight of the father. There is a grace note to the judge’s violin solo, added at the very end of the (anonymous) decision: “Because AAO finds that the applicant [i.e., the illegal] has established extreme hardship to his lawful permanent resident father, the AAO need not evaluate whether the applicant has also established extreme hardship to his wife and his mother, who are also qualifying relatives under the Act.”

I have no difficulty with an extreme hardship defense in a deportation case, but such decisions should be made with care.

Had the father been older, sicker, unemployed, not a business owner, and not (as I suspect he is) covered by Social Security and Medicare – had each and every one of those five variables gone the other way, and had the father not had a resident wife and, apparently, one or more other sons – I could understand a judge finding extreme hardship, but not in this instance.

The case, an AAO decision of September 6, is reported in the September 30 issue of the immigration bar’s newsletter Interpreter Releases; the ruling had been sent to IR by the winning lawyer. Some months from now AAO, which has a leisurely publication schedule, will place the decision on the internet with everyone’s names redacted – the illegal, his father, the illegal’s lawyer, and the decision-maker or decision makers. The IR item is not available on the internet to non-subscribers.