Misuse of government authority to deport refugee

Gloria Lara
FitzGerald & Company, LLC
Tel: 617-303-2600

April ___, 2006– A 35-year-old immigrant will soon be deported from the United States on a technicality and sent back to Colombia where he expects to be killed.

But this man, who we’ll call Jose, didn’t sneak into the country as an illegal. He followed the rules. It’s the U.S. government—by changing a critical court date—that created the technicality and is denying due process to this individual. The case is just one example of why immigrants have such a tough time trying to navigate the country’s arcane immigration rules, says attorney Desmond Fitzgerald, from FitzGerald & Company, LLC. Even though Jose—who fears he will be killed by militia groups if he’s returned to Colombia—did everything he was told to in applying for political asylum, the government’s conduct by concealing key evidence supporting Jose’s case is leaving Jose with little legal recourse.

“They are misusing their authority,” says Fitzgerald, noting that his client is now caught in a technical quagmire that may ultimately cost him his life.

Jose fled his native land on Dec. 30, 2001, after refusing to pay protection money to one of the roving militia groups that had just killed his neighbor for a similar offense. Immigration officials interviewing him upon his arrival determined that he had sufficient grounds to seek political asylum. Under immigration law, however, he had to file his application for asylum within a year of his arrival at his court scheduled hearing. The initial hearing date of Dec. 19, 2002 gave him plenty of time to meet that deadline.

But the government postponed the hearing until July 2003. When Jose showed up as instructed, his application was thrown out because he failed to meet the critical one-year deadline. And when he appealed this ruling and the court ordered an administrative review, the rescheduling document was missing from his file.

“We have a copy of this document. We can show it exists,” says Fitzgerald. But the court won’t reconsider the case because the document is in the hands of the immigrant, not among the government’s documents. That means that as of April 3, the U.S. is free to deport Jose at any time.

Jose and his story are compelling by themselves, but Fitzgerald says the problem is much broader than this one case. Immigrants who try to play by the rules often run afoul of technicalities created by the government itself as it processes their cases. “This isn’t the only time something like this has happened,” he says.

The government is also trying to take away the rights of legal residents who pay their taxes, to sue when their citizenship applications are not processed within the time guidelines the government itself has set. These law suits, which are generally successful for the immigrant, is one of the few legal recourses left to keep our government in check and performing its duty as set by the laws and regulations of the country. It is not a surprise immigrants have decided to take action to protect their rights.

This story is particularly timely given the attention now being paid to immigration issues in the U.S. Many U.S. immigrant groups are now planning a general one-day strike on May 1 to underscore their importance in the U.S. economy. Their arguments speak to economic pragmatism. Jose’s case speaks about basic justice.

“This is a case where the government is concealing evidence that we know exists to deny asylum to an individual from Colombia,” Fitzgerald says. “This is just wrong and we are going to fight it until justice is done.” 

Attorney Desmond P. FitzGerald is the lead attorney at FitzGerald & Company, LLC, a Boston based immigration and criminal defense firm, specializing in Federal immigration litigation.

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