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The twilight zone

February 16, 2011

By Staff Reporter

Irish immigration at the millennium

Part Two of a four-part series

Part 2: In the shadows of the law

By Patrick Markey and Harry Keaney

When 19-year-old Kevin Garrity boarded a flight for the United States last year, he brought with him the telephone number of a cousin living in Philadelphia and the hope that he could carve out a new life in America.

Eager for a change from life in County Tyrone, Garrity, a plasterer, was drawn by his cousin’s tales of easy dollars. America offered work and so he came. Even though he didn’t have a working visa, it didn’t seem an unreasonable plan. After all, thousands of young Irish had done it before him.

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But only five days after arriving in Philadelphia’s bustling Northern Irish community, Garrity sauntered into a West Darby coffee shop — and into every new immigrant’s nightmare.

Immigration and Naturalization Service agents had just arrested two Irish women, charging them with working illegally in the U.S. Hearing Garrity’s distinctive Northern Irish accent, one agent asked him for identification.

He could produce none. But Garrity’s brogue was apparently the only evidence the agent needed. The young Tyrone man soon found himself in custody and on his way to a Pennsylvania county jail.

After two days in the Roundhouse, as the jail is known, and four more in the notorious York Prison, Garrity was put through deportation proceedings and unceremoniously dumped onto a flight back home.

"They told us that we’d probably be on the next available flight, but I was kept there a week," Garrity said by telephone from his home in Fintona, Co. Tyrone. "Two days in the Roundhouse and three or four in York. I never got my reason why."

Barely a week in the United States, Garrity’s American sojourn had come to an abrupt end. Since he had entered the U.S. on a temporary visa-waiver program — which allowed him a three-month stay, but forfeited his rights if the INS found he had committed a violation — Garrity had no judicial hearing and no contact with a lawyer.

Garrity’s visa allowed him to visit to U.S., but not to work. Although his visa was still valid, he was charged with working illegally in United States.

"I just felt unlucky, you know. I knew the way we would be treated, but I thought, ‘Why me?’ when others were doing all right," he said.

As unfortunate as Garrity may have been when he walked into an INS workplace crackdown, his story is a telling illustration of the harsh immigration climate facing those who work illegally in the United States, say advocates for Irish immigration.

Garrity’s case, while extreme, reveals a legal landscape now fraught with obstacles undocumented immigrants must navigate. Critics of current immigration laws say this situation is particularly harsh for those who may have overstayed their legal status and are now hoping to settle here legally with their American families.

"These are the worst immigration laws in 70 years," said James Claffey, advocacy director for the New York Immigration Coalition. "They are tightening up right across the board."

Reform advocates say the current immigration debate, and how it affects undocumented immigrants, centers on two main issues: the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and its impact, and the shift in focus in the funding and structure of the INS.

After the 1996 law, reforms were enacted by the U.S. Congress, criminal penalties for immigration offenses were stiffened, punishment for prior criminal offenses began, and the INS also enhanced its ability to crack down on worksites where agents suspected immigrants were working illegally.

Reforms of immigration law have been accompanied by a focus on enforcement and increased funding to reduce the number of illegal immigrants living and working in the U.S. According to INS figures, in 1998 approximately 50,000 more immigrants were removed from the U.S. than in the previous year.

In the fiscal year 1997, the service removed 114, 386 illegal immigrants. In 1998, 171,154 were shipped out. Approximately 56,000 were what the INS described as criminal aliens, and another 115,143, an increase from 63,114, were non-criminal removals. Most of those came from the Southern California area bordering Mexico. Those figures do not include the 1.5 million apprehensions and voluntary returns at the U.S. border, according to a recent INS statement.

"Removals play a crucial role in our effort to restore credibility to our nation’s immigration laws," INS commissioner Doris Meissner said.

"I am pleased with the progress we’ve made in removals, but in the interior and at our borders we have much more to do."

Figures for INS removals for the fiscal year 1999 rose again, another 3 percent, to 176,990. In Philadelphia, removals were down to 1,558, a drop of 24 percent from the year before; in New York, removals rose 12 percent, to 4,005, and in Boston, there was a rise of 8 percent in 1999, to 976.

The 1996 IIRIR act was seen by its supporters in Congress as the long-needed plug in the holes of America’s hodgepodge immigration law; a move toward securing the borders and reducing immigrant crime.

Lamar Smith, the Republican congressman from Texas and chairman of the House subcommittee on immigration affairs, later said the new laws had successfully shut down the legal loopholes used by illegal immigrants to remain in the United States, according a press release from the congressman’s office.

First came the introduction of punitive bans for those caught overstaying their visas. Undocumented immigrants who overstay 180 days are now barred from entering the U.S. for three years; those who overstay by a year face a 10-year ban.

The penalties act as a deterrent to force immigrants to reconsider overstaying and becoming illegal, said Eileen Schmidt, a spokeswoman for the INS. Approximately 40 percent of those affected by the penalties arrived legally and have either overstayed their visas or have violated their visas by working illegally, she said.

However, it is difficult for the INS to judge how effective this deterrent has been, Schmidt said, because calculations about the undocumented population rely heavily on guesswork.

But it is the 1996 penalties combined with a second change enacted by Congress in 1997 that have forced many of the new generation of undocumented Irish into a legal Catch-22.

Before 1997, undocumented immigrants who overstayed their visas could adjust their status while remaining in the U.S. and paying a $1,000 fine. But in 1997, the House dropped section 245(i), under which immigrants could have applied to adjust their status while here.

Irish immigrants who have overstayed their visas in the United States must now travel back to Ireland to adjust their status. But having overstayed in the U.S., they are automatically banned from reentering.

This legal conundrum has created the unlikely scenario where INS officials and advocates for immigration reform find themselves in rare agreement.

"It has made it much more difficult to acquire status without the 245(i)," INS spokeswoman Schmidt said. Irish immigration advocates agree. They see the 245(i) issue as the major obstacle for the undocumented community.

"It’s a strange situation when you have immigration advocates, the INS and the Justice Department on the same side of the coin to reinstate 245(i) and you still get shot down," said Eamonn Dornan, a lawyer who works for the Emerald Isle Immigration Center in New York.

"The changes to 245(i), for our purposes, in one fell stroke scraps the diversity visa program," Dornan said, referring to the lottery system that allots green cards to immigrants from different nations. Without 245(i), that program option is no longer available to those who overstay in the United States.

Few of the undocumented immigrants interviewed by the Irish Echo said they came to the United States to settle. But for those who want to make the U.S. their home, 245(i) and the accompanying penalty bans can tear settled families apart.

Take, for instance, the case of Patrick, an Irish-born illegal immigrant living in the Boston area whose parents are both U.S. citizens. Although he had overstayed his visa, Patrick’s father applied to allow him to stay under a family petition.

Although he has filed tax returns annually while in the United States, Patrick cannot adjust his status in Boston to get his green card through his father’s petition. He must return to Dublin and face a 10-year ban on reentering the U.S.

Another example is Joe, a Northern Irish immigrant who arrived in the United States to visit his brother, a U.S. Air Force veteran who emigrated from the North in the 1960s.

A carpenter by trade, Joe was soon offered sponsorship by an American company in the Boston area. But because he has overstayed his visa, he would face a 10-year ban if he returned to Ireland to process the necessary paperwork.

Kiernan O’Sullivan, who works with the Boston-based Irish Immigration Center, said that even if 245(i) were restored, it would only be available to those eligible for the green card diversity program through work or family sponsorship.

"The vast majority may not have that option open to them," he said.

But if the general legal situation has tightened, so too has the ability of the undocumented to go about certain aspects of their daily lives.

With the introduction of harsher fines for businesses caught using undocumented labor, more employers require social security numbers and other identification before hiring. And advances in computer technology have made it easier for fraudulent social security numbers to be uncovered.

But for many immigrants, the key to getting on is a driver’s license, which in most states requires a social security number. Without that one piece of plastic, other trappings of a normal life — bank accounts and credit, for instance — often remain out of reach the undocumented.

"For the majority of these people, the biggest issue is the driver’s license, for work, it’s huge," said O’Sullivan in Boston’s immigration center.

"Many of the undocumented here drive with their Irish license or with international licenses, but the fact is that many of them are driving uninsured," he said.

The Utah state legislature, in May, started a program allowing drivers without social security numbers to apply for a full license using a tax identity number, a law Irish immigration advocates hope will filter through to other states.

Although primarily addressing concerns over public safety and insurance, the Utah program means undocumented immigrants can also apply. The program was sponsored by Utah state representative David Ure, who told the Salt Lake City Tribune that before the law was passed, undocumented immigrants had little choice but to drive illegally.

California State is also looking into a similar bill for driver’s licenses, although it faces opposition from the state’s powerful anti-immigration lobby.

"We are going to have to take a look at this here in Massachusetts," said Sheila Gleason, who also works at Boston’s Irish Immigration Center.

But the increased enforcement of immigration law has also drawn local police agencies and the INS into closer cooperation, leading to a more "proactive" policing of undocumented immigrants by regional law enforcement.

This is less likely in New York City, where, it is generally accepted, the INS does not work hand in hand with police in pursuing illegal immigrants, said the Emerald Isle’s Dornan.

But that is not so in other areas, where immigration advisors said even small scrapes with local law enforcement may result in a confrontation with an immigration official. Now undocumented immigrants who have court appearances on minor offenses may find themselves questioned about their immigration status.

In Philadelphia earlier this year, two Northern Ireland immigrants argued with a police officer outside a West Darby bar. When the two men were arrested, police questioned them about their immigration status, Dornan said.

INS officials were called in to verify their visas. What might have been perhaps an overnight stay in a county jail for a minor fracas became a 10-year ban on entering the United States.

"The INS are notified, then they slap a detention order on," Dornan said. "So even when the criminal case is over, they are kept in detention, even for an overnight arrest."

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