Many who entered the United States on valid visas but fell out of legal status between 1982 and 1988 are eligible for the amnesty offered under the 1986 immigration reform law.
By Teresa Watanabe
Los Angeles Times, December 15, 2008
For two decades, Anaheim businessman Erkan Aydin has taken on a task unimaginable for most immigrants like himself: trying to convince the U.S. government that he was here illegally.
Aydin, 50, arrived in the United States from his native Turkey with a valid student visa in 1981, but fell out of legal status when he failed to enroll in school, he said.
The customer service representative has a powerful reason why he wants to be considered an illegal immigrant. It would make him eligible for the amnesty offered to 2.7 million illegal immigrants under the 1986 immigration reform law.
Thanks to a recent legal settlement, the chance to apply for amnesty is finally open to Aydin and tens of thousands of others who entered the country on a valid visa but fell out of legal status between 1982 and 1988. The settlement, approved this fall by a U.S. district court in Washington state, stems from a class-action lawsuit filed by attorney Peter Schey originally on behalf of an immigrant assistance program of the Los Angeles County Federation of Labor, AFL-CIO.
'I have been born again, like a new baby,' Aydin said last week in his Anaheim car dealership office. 'I will start a beautiful life in this beautiful country.'
The landmark reform law offered a one-time amnesty to immigrants who were in the United States unlawfully from before 1982 to about 1988.
But Congress was concerned that those who entered the country with a valid visa would argue that they fell out of legal status during that time simply to qualify for amnesty. As a result, Schey said, Congress created a rule requiring immigrants to show that their shift from legal to illegal status was 'known to the government.'
That rule, however, created a new problem: How to prove that the government knew about their violations?
Nigeria native Olaniyi Sofuluke, for instance, came to the United States in 1981 on a student visa to study banking and finance at Troy State University (now Troy University) in Alabama. But, lacking funds, he soon dropped out to work as a dishwasher in two Atlanta restaurants until he could earn enough for his tuition and living expenses.
That violated his visa conditions and threw him into illegal status. The university was required to send a notice to the U.S. government that Sofuluke had dropped out but was not able to provide him with a copy when he requested one five years later. So immigration officials rejected his amnesty application, saying his violations were not known to the government.
Schey, however, successfully argued that because schools were legally required to send the notices, it should be presumed that the government received them and therefore knew about the violations.
He also successfully argued that the government knew many immigrants had violated their status another way: by failing to furnish an address report every three months. The government's failure to produce the address reports showed that the immigrants had not filed them, violating the terms of their visa, he argued.
U.S. immigration officials accepted both arguments in the settlement. They have announced that immigrants whose cases involve violations known to the government may apply for amnesty between Feb. 1, 2009, and Jan. 31, 2010.
Although the settlement was announced in September, many immigrants are just learning about it. Sofuluke, now a Maryland administrator, just found out about it last week.
'I couldn't even eat dinner, I was so full of joy,' he said. 'I've been in the twilight zone all of this time.'
As a banker in Nigeria, he said his colleagues would return from studying in the United States and regale him with stories about the land of opportunity.
He devoured news about the United States in Time and Newsweek, he said, and finally got his chance to study here in 1981.
He eventually earned an undergraduate degree in accounting and an MBA, started a dry cleaning business that employed 16 people, bought his own home and began doing volunteer work with the disabled. (He was given a work permit while his amnesty application was pending.)
'You can find the greatest opportunities here,' he said in a phone interview. 'That's why we call America 'the golden egg.' '
The settlement marks Schey's third and final class-action lawsuit over the 1986 amnesty law. The previous lawsuits, both settled in 2003, resulted in more than 150,000 immigrants being allowed to apply for amnesty.
In the first lawsuit, Schey successfully challenged U.S. policy that effectively barred from amnesty applicants who traveled outside the United States roughly between 1986 and 1988. Although Congress specifically allowed a 'brief, innocent and casual absence' during that period for, say, holiday visits, immigration authorities at the time essentially declared that anyone who left and reentered illegally was not 'innocent' and therefore became ineligible for amnesty.
In the second lawsuit, Schey argued against the rejection of amnesty applicants who had returned home and reentered with a valid visa. Immigration officials at the time held that the reentry was legal, breaking the continued illegal residency required for amnesty. Schey argued, however, that the reentry was illegal because the immigrants would have to have lied about themselves when they applied for the visa to return.
Schey said that amnesty will allow countless immigrants to report crime without fear of deportation, to visit ailing parents back home and to leave exploitative jobs.
'It will make an immeasurable difference in the lives of thousands of people,' Schey said. 'For many of them, it will be the first time since they entered the country 30 years ago that they will be able to move forward and end their underground existence.'
For Aydin, the settlement will give him the chance to fulfill a long-held dream of serving his adopted country in law enforcement or the military.
Once he has his green card, he said, he plans to pursue a master's degree in criminal justice administration with an eye toward joining the Navy, Secret Service, FBI or CIA.
'For many years, I wanted to serve this country, but I haven't had the opportunity,' Aydin said. 'Now I'm happy I'll finally have the chance.'