Daniel Rubin: Brazilian couple denied a day in court to gain citizenship

Posted: June 27, 2011

Nearly two weeks ago, a Brazilian couple walked into the offices of U.S. Immigration and Customs Enforcement at Second and Chestnut and asked a clerk whether he'd like to deport them.

Livia Maria Borges, the wife, was so nervous she had to squeeze back tears. Her husband, Welismar De Jesus, was a little calmer. Their lawyer had assured them there was little risk of their having to say goodbye to the good, though illegal, life they had built in Northeast Philadelphia during the last decade.

In fact, getting before an immigration judge was the goal of the June 15 visit, because in 18 years of practicing law, David Piver had not seen a stronger argument for making an exception to the rules that govern what happens when illegal immigrants turn themselves in.

As Piver imagined it, an enforcement officer would issue a notice for the couple to appear before a judge. Then Piver could plead for something called a cancellation of removal, which the law allows in special cases.

And this case was special. The couple had satisfied the basics - they had lived in the country for a decade and committed no crimes. They had even paid taxes on earnings made under the table - you can do that with a taxpayer ID number.

But one last element made their case most compelling:

Their deportation would result in unusual hardship to their youngest daughter, who choked 18 months ago while eating, leaving her with permanent brain damage.

The 3-year-old, Cindy Borges-De Jesus, no longer speaks or walks. She is totally dependent on those who care for her - her parents and the nurses who spend 16 hours a day with her.

Because she was born here, Cindy is a U.S. citizen. And taxpayers are picking up the cost of her care. Her parents say they wanted to come clean so they could end a decade of limbo and be better able to support her.

In the last three years, Piver had taken 10 clients to ICE for processing, and in half of those cases a judge granted permanent residency. Piver considered the Brazilians "the poster children for cancellation of removal cases."

But it's hard to get a hit if you can't get up to bat. After about 90 minutes of conferring, ICE officials turned the couple away.

According to Piver, the enforcement officer and his supervisors said the office had a policy not to open cases against people who were looking for relief in court.

Piver isn't sure there is such a policy. Maybe, he said, it's that the law is applied inconsistently.

Harold Ort, an ICE spokesman, said his agency had discretion whether to place people in removal proceedings. Decisions are made, he said, "on a case-by-case basis, as appropriate."

Borges, 28, and De Jesus, 34, were looking for opportunity when they decided to move to the United States. She had just finished high school in 2000, and overstayed her tourist visa. He owned a small clothing factory, and walked across the border from Mexico, ultimately joining an uncle in Philadelphia.

Within a week he was cleaning houses. Within a year he was working construction. She studied English, then worked as a domestic until having the first of their children seven years ago.

De Jesus said permanent residency would allow him to earn a Pennsylvania driver's license and find a better-paying job.

Borges wants to be able to go to college and study occupational therapy so she can help her daughter. She said she had nearly broken under the emotional weight of caring for a severely disabled child without the support of her parents, whom she hasn't seen in a decade.

"God help me," she said. "I have to be strong to take care of my house, my husband, and my kids."

Seems to me ICE shouldn't get to make this call. If the law allows for consideration in special cases, these people should have their day in court - at least for the sake of their daughter.


Contact Daniel Rubin at 215-854-5917 or drubin@phillynews.com.

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