Powers of Discretion

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

Things could go differently now, however. In November, right before she stepped down, former INS Commissioner Doris Meissner gave regional offices such as Aljets's some flexibility. "Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process--from planning investigations to enforcing final orders," she stated in a memo. The document, which Breitman calls the "first articulation of what we should do now to exercise discretion," comes after several years of scrutiny of the 1996 laws and the acknowledgment--even among the immigration foes who rewrote the law--that the provisions can have disproportionately harsh consequences.

The memo details several factors that should be considered in deciding whether to prosecute violations of immigration law. Among those that Breitman hopes will help Wilson Apuparo Guartamber are humanitarian concerns, including "medical conditions affecting the alien or the alien's family." "Our hope is that [the regional INS officers will] take up the notion that they have been empowered by this memo to pursue actions that show this is a humanitarian situation," Breitman says. Based upon the new memo, Breitman plans to renew his request for deferred action, which would allow Apuparo Guartamber and his family to stay here for a few years so that Marco may continue to benefit from early intervention therapies that aren't available in Ecuador. Breitman stresses that he is not seeking a green card for Apuparo Guartamber, but simply a delay of his deportation that would be subject to annual review.

Dean Hove, deputy district director for the INS region covering Minnesota and the Dakotas, says that Apuparo Guartamber's case will be reviewed under the new guidelines, although he stresses that his office has not yet seen the former commissioner's memo. "This is not policy until we have it issued to us through our channels," Hove explains. Hove says that while the INS has always been able to offer illegal immigrants relief in certain circumstances, it will help to have a specific document to consult. "You have something to refer to when you grant these benefits, rather than just your personal discretion," he says.

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

Still, he says he doesn't know what effect the new guidelines might have here. "I think we've always been compassionate and used our discretion wisely," he says. "I can't say it will make a huge difference. Each case is different."

To help Apuparo Guartamber's cause, Latino advocate Linares is circulating a petition among the congregation at St. Stephens Church. Breitman has enlisted the support of such public officials as Sen. Paul Wellstone, a Minnesota DFLer, as well as doctors, nurses, and social workers who have worked with Marco and believe the therapy he can receive here would give him the best chance for a healthy life.

For now, Wilson Apuparo Guartamber and his family are waiting, hoping, unsure what will happen to the family if the deportation order stands. Although Marco, as a U.S. citizen, could stay in the country, his parents have no relatives here who could take care of him and they refuse to leave him behind. They both shake their heads vigorously at the thought. "No. Never," Martinez Aray says, kissing Marco's cheek.


News intern Natasha Uspensky contributed research for this article.

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