LAW & BORDER

EVA N WILLIAMS/FLORID A WEEKLY Debora h Mar tin ez with her chi ldren, b ut w ithout her husband F ra nc o, who i s in Mexic o and ca n' t re turn to the U.S. "We must find a sensible and humane way to deal with people here illegally. Illegal immigration is complicated, but it can be resolved. And it must be resolved in a way that upholds both our laws and our highest ideals."

—The State of the Union Address, George W. Bush, Jan. 28, 2008

Franco Martinez, who turned 31 on Dec. 8, said he regrets some of the choices he made as a teenager. When he was 18, Mr. Martinez was deported to Mexico, the result of a minor traffic violation while living in a suburb of Dallas, Texas.

He re-entered the United States illegally about two weeks later, walking across the border into Arizona with a friend, where a car was waiting on a country road, as had been arranged. It was this transgression which ultimately led to his being barred from the United States, separated from a wife and two children in Bonita Springs.

COURTESY PHOTO Franco and Alex, Christmas 2004 "It was in the middle of nowhere," Mr. Martinez remembered. "I got in the trunk, and all I could see was a little hole in the bottom of the trunk."

He ended up back near Dallas, and about four years later moved to Miami, where his sister lived. (Mr. Martinez has at least two siblings who are U.S. citizens.)

That's where he fell in love with a Nashville, Tenn.-born bartender, Deborah, over a New Year's Eve kiss, at the Italian restaurant where they worked in downtown Miami. They were married in the summer of 2001 and moved to Bonita Springs, where he worked at a Bob Evans restaurant, while earning a GED and an electrician's license.

The Martinezes also had two children, born in Lee County. Their son Alex is almost 6 and looks strikingly like his father, with the identical haircut and smile; their daughter Isabel is 16 months old and just learned to walk.

This is the first Christmas Mrs. Martinez, 34, and her children will spend without him. They can't afford plane tickets to Mexico, and Mrs. Martinez doesn't know when her husband will be able to come home.

COURTESY PHOTO Franco and Deborah's wedding, July 2001. Initial hope

For a while, it looked like he might become a U.S. citizen. He had hoped to gain residency through his marriage, but stricter policies as a result of the 9/11 terrorist attacks prevented it. So he decided to try another legal route toward citizenship, as advised by his attorney. Last summer, he flew to the U.S. Consulate in Cuidad Juarez, Mexico to apply for residency.

The Martinez's Nashville-based attorney, Philip Perez, had expected that he would be denied residency. However, he planned to file a hardship waiver based on Mr. Martinez's family, and assured him he could return home, probably in less than a year.

Neither Mr. Perez or the family was prepared for what came next: Officials not only denied him the chance to apply for hardship, but also the right to re-enter the U.S. for 10 years. After that time, he may reapply for residency, but it may be denied a second time.

Mr. Perez, as well as other immigration lawyers, say "harsh" laws are keeping Mr. Martinez separated from his family. U.S. Immigration and Customs Enforcement acknowledged the family's plight, but is unwavering in its position that justice is served in cases such as this one.

"It's unfortunate that this has an effect on families, but remember that reentering the United States after being deported is a federal crime," said Nicole Navas, a spokeswoman for ICE. "It has consequences."

She added that any family in which a husband and/or father commits a felony must face the consequences of separation if the man ends up in prison.

Still, even if Mr. Martinez committed a federal crime, he wasn't charged with a crime in immigration court, according to Department of Justice records. And at the heart of his border crossing is, of course, a widely recognized intention: the pursuit of happiness. Mrs. Martinez said people often criticize her for marrying an illegal alien.

"But you don't pick and choose who you fall in love with," she said. "How can I judge him for wanting to do better and have a better life?"

That still fails to move many, especially those in law enforcement.

"This is a situation my client has put himself in, to a large extent," Mr. Perez said. "He shot himself in the foot.

"My problem is that the law is awfully harsh on families. You don't have to be a sociologist to understand that broken families tend to have far more problems than united families. Children from those families are far more prone to fall prey to gang activity, drugs, early pregnancy. They tend to be marginalized socially. They tend to feel disaffected and disenfranchised more than children in stable, two-parent homes. They wind up in the juvenile court system far more often.

"What we're doing is setting up a family's kids for the fall. The odds are against them from the get go."

Mr. Perez added that he is fed up with immigration law and plans to stop practising it, because the agencies that control it — ICE and the United States Citizenship and Immigration Services — are "hostile" toward his clients.

"They let ridiculous time frames pass and then make decisions that don't affect the well being of my clients," he said.

Stuck in Celaya

For now, Mr. Martinez is living with his parents where he grew up in Celaya, Guanajuato, in central Mexico.

"They're glad and unglad to see me," he said. "It had been 12 years since I'd seen them. But on the other hand, I'm in the same situation I was first in. I couldn't see my parents (after coming to the U.S.), but now I can't see my own kids or my wife.

"Just thinking about it kills me. To be honest with you, psychologically it's really hard."

He started a car washing and detailing business in Mexico, but said he isn't making enough to send money to his family in the United States.

"I'm left with paying all the bills instead of half," Mrs. Martinez said. "And when your salary doesn't change, all of a sudden now you're spending more than you're bringing in. I literally don't bring in enough to pay the bills, pay the daycare, pay for food. And then when any additional costs come up, like doctors visits or car problems, I have no credit card to fall back on and no cash."

Mrs. Martinez's mother, Dolores Isbell, came from Nashville to lend moral and financial support. But she'll be leaving this January. "She wouldn't have made it if I wasn't here," Ms. Isbell said.

The Martinezes say they their son Alex is upset with his father for being away.

"I think he understands a little bit, and he's kind of mad at me, because I'm not there," Mr. Martinez said. "Deborah doesn't want to tell him that I'm not coming back soon, so we tell him I'm just visiting. He doesn't understand why I'm not there."

There are no provisions that give Mr. Martinez a break for good intentions, his family — or really, for anything else.

"They don't care about the marriage, they don't care about the children," Mrs. Martinez said. "I just wasn't prepared for this — not for 10 years."

He won't be allowed to come to the U.S. even on a short trip.

"Theoretically, could he apply for a waiver to get a visitor visa? Yes," said Gerry Seipp, an immigration attorney in Tampa. "But practically? No. It's a very harsh thing."

And there is no statute of limitations or expiration date on when the Consulate or USCIS might put his illegal border crossings aside when considering his application for residency. He could be denied residency again and again.

Caught in the system (the dreaded 212 (a)(9)(C))

When Mr. Martinez was 18, he wasn't aware of how changing immigration laws would keep him separated from the family he had yet to meet — although in the nearly eight years since he was married, Mr. Martinez has became an avid fan of the televised Senate hearings on immigration.

"They bore me to tears, but he was always glued to the television," Mrs. Martinez said. "He knew a lot of the senators' positions on it."

In the mid-1990s, when Mr. Martinez was living near Dallas, Congress was passing sweeping, harsher immigration.

One of the rules says that if someone from a foreign country: 1. spends more than one year in the United States illegally; 2. gets deported; and most of all, 3. tries to reenter the United States a second time illegally, he or she can be barred from the U.S. for 10 years, after which he may reapply for residency — but not necessarily be admitted.

Mr. Martinez meets all three criteria.

The rule was added to the Immigration and Nationality Act during the mid 1990s, under section 212(a)(9)(C).

"Ah, the old, dreaded 212(a)(9)(C)," joked a newspaper editor who hadn't heard of the law. The numbers sounded absurd spoken out loud, like some crazy code for sad stories of separated fathers, mothers and children.

"One of the more tragic cases that an immigration lawyer can have starts with a call from a United States citizen spouse regarding news of the denial under INA 212 (a)(9)(C) of an immigrant visa to his or her spouse at a U.S. consular post abroad," wrote Kathleen Walker, president of the American Immigration Lawyers Association. "Many times in these cases, the spouse has never been advised of the existence of the 212 (a)(9)(C)."

Such was the case with Mrs. Martinez.

"I was already thinking this was probably a 212(a)(9)(c)," said immigration attorney Mr. Seipp in Tampa, as if he had been dreading it, before learning that Mr. Martinez had been deported. His tone seemed to imply a gentle shake of the head, a shrug of the shoulders. "That's a very, very common situation down here and it's a killer," added Mr. Seipp. "They call it the permanent bar."

Although the permanent bar applies to Mr. Martinez's situation precisely, government agencies would not confirm that it led to his being barred from the U.S., because of privacy rules.

The U.S. Consulate in Juarez "isn't obliged to speak to reporters," said attorney Mr. Perez. "So they don't."

Last summer, Mrs. Martinez called the U.S. Consulate to confirm her husband's 10-year ban from re-entering the U.S. They did, but wouldn't answer any other questions, and have remained incommunicado since then.

"I have yet to get any communication from the Consulate," said Mr. Perez. "The same with Deborah. She hasn't gotten anything."

Although it is, in fact, officials from the U.S. State Department who review cases like Mr. Martinez's at the Consulate, a spokeswoman for the U.S. State Department asked not to be quoted in this article because, she said, "We don't make the decision to deny them residency."

The State Department officials at the Consulate are simply messengers, the spokesperson said, objective recorders of indisputable facts and events. As such objective functions, they hold no more responsibility than a tape recorder.

"We listen to this story and pass it on to the ICE or DHS," she said.

But the State Department spokesperson understood the Martinez's basic situation. After hearing that Mr. Martinez had reentered the U.S. illegally after being deported, then tried to get residency at the consular office in Juarez last summer, she remarked, "I have a funny feeling they looked at him and said, 'You've gotta be kidding me.'"

This reaction to what "they," the State Department officials at the U.S. Consulate, might have viewed as an absurdly hopeless situation was predictable, according to immigration lawyers.

"If you key in on the law, it's crystal clear what it's saying," said Tampa attorney Mr. Seipp.

"(The 212(a)(9)(c)) is not anything complicated," said Yraida Alonso, immigration director for Catholic Charities, the diocese of Venice. "Everyone who works with immigration knows it."

The Martinez's attorney summed it up: "The bottom line is, he's inadmissible. I just don't see a lot of options for him."

Deportation or not, attorney Mr. Perez expected the consulate to deny Mr. Martinez his residency at the first try. But he planned to circumvent the denial by filing a "hardship waiver," and predicted that the Consulate would allow Mr. Martinez to return to his family in less than one year.

Even if they eventually do allow Mr. Perez to file a waiver, he will have to prove that the hardship for Deborah Martinez is "exceptional and extremely unusual," which is generally interpreted to mean she is suffering from some debilitating health condition.

And, Mr. Perez noted, the situation for the Martinez children, Alex and Isabel, is not a major consideration to officials from USCIS when they review a hardship waiver.

"The child's suffering, in and of itself, is not enough," Mr. Perez said. "They want to know how the spouse is affected. The issue of the hardship (waiver) is a big frustration in my profession. Basically, (Ms. Martinez) has to be almost dying. Federal circuit courts watered it down because they said that's just too harsh. You can see there's almost a malicious intent of the Congress back in the mid-1990s when they enacted that legislation."

Federal courts have not watered the law down enough, however, to include single parents, even if they are struggling financially.

Attorney Mr. Seipp said the law is intended to be harsh, so that it would be a "heavyduty deterrent" to people like Mr. Martinez who might try enter the country illegally. But young Mexicans who are determined to find a better life in the United States — even if it means a risky walk across the border — are generally in the dark when it comes to the dreaded 212(a)(9)(C).

"It doesn't really deter too many people," Mr. Seipp said.

Mr. Seipp is hopeful that President-elect Barack Obama's administration will pass immigration reform. And who knows? Maybe it could help Mr. Martinez.

"He needs a new law," Mr. Seipp said.

Meanwhile, Ms. Martinez said, she still has hope although she is considering moving to Mexico.

"I can't keep my children separated from their father," she said.