Powers of Discretion

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

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.

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."

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.

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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