By Jazmine Ulloa
The Brownsville Herald
Angel de Jesus Barrera will turn 3 next month. But at 22 pounds and eight ounces, he is fighting for his life as his mother faces deportation later this month.
He was born with congenital craniofacial dysmorphism, an abnormality in fetus development, which left part of his cranium and face disfigured. Barrera looks more like a 1-year-old given his size and weight. He has a whole list of medical conditions, some of which include Down’s syndrome, scoliosis, mental retar dation, seizure disorder and a serious case of glaucoma that recently caused the removal of his left eye.
Any infection could prove fatal, doctors say. Every medical and physical treatment is critical. But whether Barrera makes his next doctor’s appointment in Houston at the end of this month depends not only on his delicate state. It hinges on his mother’s immigration status.
Alma Lerma, his mother, crossed into Brownsville from Matamoros illegally in 1995 and has been fighting against deportation since last year. This week, a U.S. Customs and Immigration Enforcement official denied her request for permission to stay in the United States for another year based on her son’s medical case.
Lerma will have to voluntarily leave the country by April 20 or be forcibly removed. She has eight children, including Barrera, all of whom were born in the United States. Their future is now uncertain.
“My son’s life is hanging by a thread,” Lerma said Friday at her home in Southmost. “Doctors have told me he will not live much longer if I take him with me to Mexico. But I do not know of anyone who can take care of him for me if I leave.”
For immigration attorneys, stories like Lerma’s are not uncommon. Applications for Stay of Deportation or Removal, the requests illegal immigrants must file for permission to stay in the United States if ordered to be deported, are rarely granted, even in cases where the applicant has a child with a severe medical condition or who is terminally ill, attorneys say.
“You submit a document, like this thick, of all the problems that the children has and all the reasons why they can’t get medical care in their home country, and you get this back,” said Jodi Goodwin, an immigration attorney in Harlingen, pointing to a copy of the one-page denial letter sent to Lerma. “It is a death sentence.”
Goodwin does not represent Lerma, but she said the response from U.S. Immigration and Customs Enforcement to Lerma’s case was all too familiar.
“This is the exact same language that I have received in every single case that I have ever requested any type of discretionary action from the government,” she said. “It is the exact same boiler plate language.”
What is discretion?
All illegal immigrants ordered deported from the United States can file the Application for Stay of Deportation or Removal, or form I-246. A U.S. Customs and Immigration Enforcement officer evaluates the applications on a case-by-case basis and decides whether to enforce the law against an individual, using “his (or her) own discretion based on the circumstances of their case,” said Nina Pruneda, spokeswoman for U.S. Customs and Immigration Enforcement.
Individuals granted permission to stay in the country have cases that warrant a “favorable action of discretion” and meet the following criteria: the person’s removal is not imminent; the person is not a flight risk; the person is not a threat to national security and family safety; the person has family ties to the community.
Since January 2009, 76 people have filed the form for stay of deportation. One application is still pending, 26 have been approved, Pruneda said.
Lerma first filed I-246 form last April, after she was detained at the U.S. Border Patrol checkpoint in Sarita on her way to take her son to a Houston hospital for surgery. She was granted permission to stay in the United States for a year.
But last month, Lerma’s attorney, Jaime Diez, sent a packet to the federal immigration agency with Barrera’s medical documents and reasons why Lerma should be allowed to stay with her son for another year. He explained Barrera’s condition had not changed. The boy is still on numerous medications and uses a feeding tube to eat and an oxygen tank to breathe. He also stated Barrera needs the care of a nurse at his home
nearly every day.
The denial response faxed back to Diez on Wednesday stated no reason why Lerma’s application was denied.
“I have carefully reviewed your request and your client’s immigration history. Your supporting documentation was given full consideration. I have conducted an inquiry into your request and based on the documentation reviewed, I have determined that your client’s case does not warrant a favorable action of discretion,” stated the letter signed by ICE Field Office Director, Michael J. Pitts.
Lack of discretion
Part of the reason, federal immigration officials limit their use of discretionary action is because it has been so “flagrantly abused” in the past, said Mark Krikorian, executive director of the Center for Immigration Studies, a think tank in Washington D.C. that favors tighter control on immigration. Through illegal immigration reform legislation in 1996, Congress tightened the flexibility of the system, he said.
“We had and still have an immigration policy that is just a collection of lots of exceptions,” he said. “With immigration lawyers committed almost fanatically to opposing immigration enforcement, it is hard to allow that flexibility (in the immigration system) because they will take advantage of it, and they do, all the time.”
Those who have suffered from what Krikorian described as immigration attorneys’ and judges’ “exploitation of loopholes” are “the people who need flexibility the most.”
But immigration attorneys said the mentality of U.S. Immigration and Customs Enforcement to fill deportation quotas is tearing families apart and affecting the most vulnerable, hundreds of thousands of children. Like Lerma, many illegal parents ordered for deportation have no criminal history, attorneys said.
“Legally, technically, under the law, are those people here illegally? They are,” Goodwin said. “But legally, technically, under the law is that the kind of person you want to deport? Our country, which is based on family values, wants to leave children without parents when they are terminally sick?”
Once parents’ requests to stay in country are denied, Goodwin continues to fight for their cases pro bono, often filing motions to reopen their cases based on an asylum theory, which has kept her clients in the United States.
But she says she has never won a case; the proceedings only “drag on and on and on.” She has worked on some client cases that have lasted for nearly 10 years.
“Those are the cases that really make me depressed,” Goodwin said. “You want to fix their problem but a lot of times fixing their problem is not winning their cases, it is losing it as slowly as possible.”
Lerma, 32, crossed illegally into Brownsville from Matamoros, where she was born, when she was seven months pregnant with her first daughter. She wanted to escape what she described as an abusive relationship with her former husband. She is currently unemployed and Medicaid covers all the medical expenses for her son.
Doctors first told Lerma the boy was going to have a congenital disorder five months into her pregnancy. They suggested abortion, but she said she wanted “to give him a chance at life.”
When he was born, they did not bring the baby to Lerma right away because they said he looked “like a little monster,” she said. And within hours of his birth, he was flown by helicopter to a hospital in Corpus Christi, where doctors “gave him minutes, hours to live.”
“They only brought him to me for a few minutes to say good-bye because he might not ever wake up from the surgery,” she said. “They told me to be strong.”
Almost three years later, Barrera is now interacting and can acknowledge the world around him, said Dr. Elsa Mendoza, who has served as the child’s primary pediatric physician since birth.
He smiles when his mother kisses him. He attempts to wave when someone says his name. In the last four months, he has also begun to grab his toys and is now learning to sit himself up.
“We have made a difference in the child’s life,” Mendoza said. She is unsure if in Mexico he would be able to receive the best care but moving him out of the United States is certainly not the best option, she said.
But leaving him in the United States on his own is also putting the child in danger. The child’s prognosis is poor, and the doctor says, “he would not be able to survive in the United States without his mother.”
As published on April 10, 2010