Stars and Bars

The way Valentina Kostina sees it, the only reason she didn't get deported was because she didn't panic. She didn't get belligerent, didn't argue with the border guard who concluded that she, a Russian citizen, was trying to enter the United States illegally. She acquiesced when the Immigration and Naturalization official at the airport in Anchorage challenged her legal right to rejoin her husband and two daughters in Minnetonka. To demonstrate her compliance, Kostina, who speaks no English, agreed to purchase a ticket back to Moscow on the spot.

Within seconds, Kostina had fallen victim to a series of unusually harsh new changes in immigration law that stand to separate thousands from their U.S. families, businesses, and homes. Her attitude, she says, convinced the INS agent to grant her a three-day "parole" to fly back to the Twin Cities and wrap up her affairs. During those three days, Kostina got an attorney and ultimately became a plaintiff in what could be a landmark class-action suit against the new immigration rules Congress passed last year. For now, she will be able to stay with her family. But for thousands like her--people legally eligible for residency who have run afoul of a technicality or of a border agent with an attitude--September 30 marks the deadline to pack their bags and face an uncertain future.

The Kostines moved to Minnesota a year ago after Valentina's husband, Sergei, was recruited by a Minneapolis firm that specializes in exporting goods from Russia. One of Minnesco's projects, as it happened, was to sell Russian timber to the Japanese. And, notes company President Geoff Evans, "it's possible to count the number of Russians who've sold timber in Japan on one hand." Because there were no qualified U.S. employees, the company was able to secure an employer-sponsored visa for the family.

So when Kostina stepped off the flight from Moscow in Anchorage last May, she expected to clear customs, change planes, and be on her way home in short order. "My visa was in good standing, I had been living in the United States, and my children were in the United States," she says through a translator. "At the immigration control point, when they started asking me questions, there was nothing unusual about that. But when the INS officer asked to look in my briefcase, my heart fell to my knees and I thought, 'What is this about?' He asked me if I worked in America, and I said, 'Certainly not, my husband works in America.' When he looked in my briefcase, he saw in short order contracts with Herbalife."

The visas granted to Kostina and her children don't allow them to work, and she tried explaining to the agent that she didn't work for Herbalife, a multilevel marketing scheme that's akin to Amway, in the United States. In Russia, she'd signed up to be a distributor because cosmetics and herbal supplements were expensive there and Herbalife supervisors--mainly people who induced their friends to sign on as distributors--got a 50-percent discount. Kostina had enjoyed the discount, but never received a penny from the company's Russian division, much less had contact with its U.S. headquarters.

But the INS agent wasn't buying it. In fact, he insisted that Kostina had now compounded her problems by lying, stamped the word "fraud" in her passport in giant red letters, and made a similar entry into the INS computer system. "When it became clear that I had to leave the country," Kostina continues, "I asked, 'What about my children?' They said, 'You must have friends there who would help the children finish school and then pack their bags and go home.' That's when I thought, 'My family's relationship with the United States is over, and probably my husband's work with Minnesco.'"

Back in the Twin Cities, Kostina and her attorney, Laura Danielson, went to the INS regional office in Bloomington to argue her case and plead for someone to lift the deportation order. While the officer on duty quickly agreed that there was nothing to suggest Kostina had worked for Herbalife here, Danielson says the agent still couldn't help them. Under a new federal law, there's no way to appeal a decision made by the INS at a port of entry. The best they could do was to tack another 90 days onto the three days Kostina had been given in Anchorage to clean up her affairs. At least she'd be there when her older daughter graduated from high school.

As it turns out, Kostina won't have to leave the country by September 30. Last week, the INS approved Sergei Kostine's petition to immigrate. Chances are that when he gets his green card, his family will be allowed to stay, too, Danielson says. But that still leaves her--and every other immigration attorney in the Twin Cities--with a practice full of clients trapped in the byzantine permutations of U.S. immigration politics.  

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was supposed to make it easier for the INS to crack down on scofflaws. But many of its provisions look to have the opposite effect--making it impossible for people eligible for residency to get their legal paperwork in order. As a result, say Danielson and other attorneys who belong to the American Immigration Lawyers Association (AILA), tens of thousands of immigrants who are married to U.S. citizens or residents or sponsored by an employer must leave the country by the end of September.

AILA and several other organizations, including the American Civil Liberties Union, recently filed a class-action suit against the INS in U.S. district court in Washington, D.C. on behalf of immigrants who will be punished by the harsher changes created by the 1996 law. The suit asks that the courts bar the INS from using new, faster deportation procedures like those used in the case of Kostina, one of the 13 plaintiffs.

The change, known as "expedited removal," eliminates judicial review in immigration cases involving people seeking entry at the border. Not only is the word of a border agent final, as in Kostina's case, but immigrants being expelled from the country no longer have the right to call an attorney or family members or to petition for a hearing. Often they aren't told why they're being deported or what evidence is being used against them. Frequently they are held incommunicado for hours or days. The same rules apply to juveniles traveling alone.

At the same time, Congress allowed Provision 245I, a popular two-year-old clause in immigration law, to lapse. Since October 1994, people who were eligible to live here but technically afoul of INS law have been allowed to pay a $1,000 penalty and stay in the country while awaiting residency. The idea was to unclog U.S. consular offices abroad and create a source of revenue for the INS. Without the provision, there are even fewer options for people already in a quandary because of the lack of judicial review.

In its short existence, 245I has been available only to immigrants already eligible for a green card because of family connections or job status. Some are people who entered the country illegally, but who are now married to or the parents of citizens. Others' illegal status stems from a technicality--filling out the wrong form, or simply having paperwork languishing at the INS. Before 1994, such individuals--68 percent of whom, according to AILA, are spouses and children of U.S. citizens or permanent residents--had to return to their home country, apply for a visa at the U.S. consulate there, and wait for months or years for their green cards.

Still another of the new laws dictates that immigrants who stay in the United States without finished paperwork, often simply awaiting INS decisions, may find themselves barred from the country. Anyone who overstays their visa for six months faces a five-year bar; those here a year without resolution may not re-enter for 10 years. So anyone whose visa expired before April 1 must leave by September 27. A further provision punishes anyone who lies to the INS, for example by claiming to be a citizen or resident, with a permanent bar.

Faced with the possibility of being separated from their families for years, immigrants whose status is in limbo are lining up to get out by the end of the month. Most will go straight to the nearest U.S. consulate to petition for the visas they're eligible for, creating an estimated 30 percent increase in work for State Department offices overseas. Still others say they plan to stay, living underground, in the hope that Congress will eventually reform the 1996 law.

But like most other immigration attorneys in the Twin Cities, Sam Myers, head of the Twin Cities chapter of AILA, is faced with advising people with families, businesses, and homes here that their smartest option is to pack up and leave in the next few days. The cases that upset him most, he says, are those involving people who did everything right and now must leave because the INS hasn't acted on their applications in a timely fashion. "These people are leaving because the U.S. government can't do its job," says Myers. "It's a sweet irony."

In the end, if any headway toward re-examining the 1996 reform is made, it's likely to be because the INS is already anxious about the revenue lost when 245I ends later this month. According to INS Acting District Director Dean Hove, 200 to 230 people per month have used the provision in the Twin Cities area, a number he suspects jumped in September. In fiscal 1997, the provision yielded $200 million for the INS, with 80 percent of the money earmarked for detention and enforcement.  

Appropriately, when the Senate passed a permanent extension of the program, it tacked it on to the 1998 appropriations bill. But the House Immigration Subcommittee, headed by the vehemently anti-immigrant Rep. Lamar Smith (R-Texas), won't even consider the provision. When the House passes its appropriations bill, the two measures will land in the House-Senate conference committee, where, advocates hope, 245I will get written into the final version.

Whether the issue will be resolved quickly enough to help the immigrants facing tough decisions this month is anyone's guess: On one hand, Congress is loath to repeat last year's government shutdown, and is likely to pass the appropriations bills--or stopgap measures--right away. On the other, the House version contains a Republican-driven change in U.S. census sampling techniques that President Clinton has threatened to veto.

If it doesn't get fixed now, the matter most likely will rear its head again when lawmakers' offices become deluged with calls from angry local businesses, and the sagas of families rent apart begin appearing in newspapers. "We're seeing increasing numbers of cases of button-down corporate types--the last thing on their agenda is to violate the law, [but they] are being victimized by these laws," says Myers. "Companies are trying like hell to get the bureaucracy to run right, but there's no incentive for [the INS] to be service-oriented toward business and industry. There's every incentive for them to go out and plan raids, which aren't very effectual...We really need a couple of executives to get deported in order to get this cleared up."

If that still doesn't convince Congress to act, Myers suggests that maybe the long-term economic impact will. If it gets too hard for high-tech and other industries to recruit specialized labor from abroad, one likely outcome could be the relocation of more U.S. industries overseas. "Bill Gates," Myers says. "He's threatened to go somewhere else--India, like the T-shirt manufacturers--if he can't get labor here... Industry is going to get its job done. Textiles, shirts, baseballs, medicine--all of their products will get made, it's just a question of by who and where." Geoff Evans, Sergei Kostine's employer, couldn't agree more. "It's been a huge inconvenience. Fifteen to 20 percent of my time has gone to solving this problem in the last two months." Without Kostine and his other Russian employee drumming up business, he adds, Minnesco couldn't stay in business, meaning all of its employees--including the immigrants--would stop paying taxes. "With the new law, I feel we've been grossly mistreated," he says. "It goes against the principles that are American, that is, recourse to a legal system when something goes wrong. The new law provides for no legal recourse, there's no judicial check on the system."

As for Kostina, right now she's feeling grateful that she's not lined up with the scores of other Twin Cities immigrants for whom September 30 looms large. Incredibly, she still retains an immigrant's faith in the system. "Now I realize that in America, laws are created for the people, are there to be enforced, and that we as taxpayers have rights," she says. "That's one of the beauties of living in America."

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