Powers of Discretion

A new INS policy might make all the difference in the world for a child with a birth defect

Marco Apuparo Martinez, a dollop of baby fat wrapped in sweaters, scarves, and blankets, rides on his father's shoulder. Wilson Apuparo Guartamber gently sets his 13-month-old son on a chair in this basement office--a Latino outreach organization--in Minneapolis's St. Stephens Community Center. His wife, Maria Teresa Martinez Aray, removes the layers that protect the boy on this frigid December afternoon, then offers her son a few spoonfuls of applesauce. As the baby stretches out a red-mittened hand to his father with a happy bleat, a dimpled smile creeps across Marco's puffy cheeks. It is a smile wholly unaware of the precarious position Marco and his family find themselves in today.

"I wanted to do something good for my family," Apuparo Guartamber says softly, with a thick Spanish accent. His face--with furrowed brow and dark eyes that have spent years trying cautiously to exist without being seen--turns toward the floor, remorseful. He pats Marco's head, draped in dark, feathery hair that frames the broad, flat forehead and wide-set, upwardly slanting eyes that are indications of Down syndrome, the genetic disorder the baby was born with.

Thirteen-month-old Marco Apuparo Martinez and his parents
Teddy Maki
Thirteen-month-old Marco Apuparo Martinez and his parents

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Apuparo Guartamber came, illegally, from his home in Ecuador to the United States in 1995. His wife followed a year later. Facing poverty and a dearth of jobs in their hometown of Cuenca, the couple hoped to find work in America so they could send money back home to their two small children and the relatives caring for them. Until recently, Apuparo Guartamber worked two restaurant jobs in the Twin Cities. Martinez Aray also works in a restaurant, and spends the rest of her time caring for Marco. The family is scraping by; the couple's combined annual income hovers around $30,000, and they send up to $6,000 back to Ecuador to feed and clothe their two other children.

Marco, born November 17, 1999 in Minneapolis, is the only member of his family to hold American citizenship. Even as he smiles and giggles, Marco's pudgy body slips forward, nearly sliding out of his chair. This is another symptom of his condition; Marco lacks the muscle strength even to hold himself upright. Twice a week he spends time in therapy, to strengthen his muscles and improve his coordination. His development will likely be slower than that of other children, but his parents hope that the therapy will help him develop to his full potential, to lead a good life.

But the quality of that life is threatened. According to Hennepin County District Court documents, on March 4, 1999, Apuparo Guartamber was driving in northeast Minneapolis when a police officer noticed his car weaving erratically across the center line. He was arrested for driving with a blood alcohol level of .21--more than twice the legal limit. He pleaded guilty and served 20 days in the workhouse. After his release, Apuparo Guartamber was taken to the Immigration and Naturalization Service detention center in Bloomington, and removal proceedings against him began. He has until January 17 to voluntarily leave the United States, or face deportation.

Apuparo Guartamber and his wife are worried that if they return to Ecuador, their son will not receive the medical treatments that could benefit him. They know of no services in their hometown--and even if treatment were available, the couple would not be able to pay for them. Here in the office, Hispanic community organizer Juan Linares translates for the family. "Marco will be isolated because society in Ecuador, they don't have the programs," says Martinez Aray. "They're not ready to deal with this type of condition. He will be labeled mentally retarded. Different." There, Linares offers, children with Down syndrome are often hidden by their families, with little chance of interacting with others or gaining independence, which is very possible for people with the disease.

According to a fact sheet from the National Down Syndrome Society, "early intervention services, which begin shortly after birth, help children with Down Syndrome develop to their full potential. Quality educational programs, along with a stimulating home environment and good medical care, enable people with Down Syndrome to become contributing members of their families and communities."

Apuparo Guartamber's shoulders slump forward, laden with contrition that his mistake could hurt his son. He says his single arrest was the first and last time he ever drove after drinking. He says he doesn't drink anymore. And he, and the lawyer he's enlisted, immigration attorney Richard Breitman, hope it's not too late.

In 1996 the U.S. Congress passed amendments to the Immigration and Nationality Act, which placed stricter regulations on illegal immigrants. But the new law, Breitman contends, went too far toward restricting the system, effectively eradicating the agency's ability to exercise any case-by-case discretion. "Immigration law has become enormously much more unfriendly to people," he says. "It has taken away the opportunity for administrations who are at the front line of these things to act compassionately."

Last summer Breitman asked the INS to consider his client for "deferred action status" because of Marco's condition, offering the statement of an Ecuadorian doctor that sufficient treatment is not available in that country. In a November 13 letter to Breitman, INS District Director Curtis Aljets agreed that "medical care and other social services are generally believed to be of superior quality in the United States; however this belief, in and of itself, does not constitute a reason for granting deferred action."

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