L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 111, March 5, 2001
For Once, Bureaucratic Nightmare Has a Happy Ending
by Vin Suprynowicz
Special to TLE
Shaik Muhammad "Jay" Jawaid, 37, was brought to this country by his father in 1985 to study for his degree in mathematics.
"I really do believe that I'm an American," he says. "I really don't know what Pakistan is at this point. ... It's been since 1985 since I was there."
It's also been that long since Jay has seen his mother, who remains in Pakistan. The Las Vegas cab driver has long been afraid that if he went to visit her he would not be allowed back into this country to see his wife and children, who are American citizens.
Jawaid was within three courses of completing his B.S. degree in mathematics at Elmira College when his scholarship funds ran out and he had to drop out of school. He ended up here in Las Vegas, driving a cab.
In 1990—the same year his father died—his student visa expired. He applied for political asylum in 1992, but that request was turned down. Charged with having overstayed his student visa, Jawaid was arrested in 1995. Appearing in court without the benefit of counsel, Jawaid was ordered to leave the country by Aug. 9, 1996. He appealed.
The brief from the appeal of Jawaid's case to the Ninth U.S. Circuit Court of Appeals picks up the story:
"On Dec. 23, 1996, while his appeal before the Board of Immigration Appeals was pending, Jawaid learned that his girlfriend. Mi Kyang Kwak, a U.S. citizen, was pregnant with their child, and married her. Eight months later, on Sept. 9, 1997, Jessica Jawaid was born in Las Vegas, Nevada. ...
"On April 17, Jawaid's wife filed a visa petition for her husband and filed a filing fee of $1,280 to the INS office in Las Vegas. Included in this filing fee was the $1,000 penalty aliens are allowed to pay to adjust their status pursuant to section 245 (i) of the Immigration and Nationality Act."
The INS kept accepting the Jawaids' money. But then they would inform them that some technicality still prevented the husband from getting his citizenship, or even a green card—documentation which would allow him to work for a living here, or to return to this country were he to visit his mother in Karachi.
Most folks would probably figure Jawaid's marriage to an American citizen should have brought this matter to an end. As we all know, any legitimate marriage to an American citizen conveys American citizenship—in part so both parents can live with their children in the same country, a reasonable enough provision if everyone's goal is to keep families together and off welfare.
But that's not the way the Immigration and Naturalization Service saw things. Since Jawaid was held to have been in violation of a departure order at the time of his marriage, the INS considered his marriage "fraudulent."
"Do you really think this is a fake marriage?" I asked Tom Walter, assistant district counsel in the Las Vegas office of the INS, late last month.
"That's not the case at all," Walter insisted. "The problem is by law this man cannot adjust his status. Number one he entered as a student, and students under the new law since 1996 cannot adjust. And number two he was given voluntary departure at the time of his original hearing, and under the terms of voluntary departure if you don't depart at the proper time, you're deemed to to be ineligible later on for an adjustment of status.
"By the time he got married he was ineligible because of the laws that had passed and because he had not left at the time he said he would voluntarily leave. So even though he is married he can't adjust his status in the United States. Now, that doesn't mean he can't get his green card in Pakistan and become an immigrant. For the life me I can't understand many people who are in the same predicament that he is."
All folks like Jawaid have to do is "go home, go to their consulate, get a green card, and be admitted to the United States with a green card as an immigrant. ... If he'd simply gone home in 1996 like he said he would and gotten his green card, he'd be back by now as an immigrant."
"If he'd done that he would have waited 10 years to get back into the country," responds former District Court Judge Don Chairez, now a leading local practitioner of immigration law.
After a succession of attorneys took the Jawaids' money without doing them much good, Jay Jawaid was either smart enough or lucky enough to have his case cross the desk of Don Chairez.
Though Jawaid has tried to pay what he could to the former judge (Chairez stepped down from the bench to launch an unsuccessful bid for Congress in 1998), the taxi driver has been unable to work since his immigration troubles escalated. He now stays home with the kids while his wife supports the family as best she can on the modest pay of a taxi dispatcher.
Chairez paid to print up his briefs in the case at his own expense; he paid his own airfare to San Francisco to argue Jawaid's case before the Ninth Circuit.
"He would have grown up a stranger to his kids. Here's a guy who just wants to work and support his family, and if he'd left the country like they said he should, that family probably would have had to go on welfare," explains Chairez, who charted out for the appeals court the Byzantine thicket of regulations which the Jawaids have been trying to navigate for the past four years.
Chairez says he got the feeling the appeals court was losing patience with the government's contention that the Jawaids have a "fraudulent marriage" when the judges learned little Jessica is now three years old, and that baby Aisha was born two months ago, on Christmas morning.
"Don't you have anything better to do than to break up American families?" one of the justices asked the unfortunate U.S. attorney assigned to argue the case.
"I think that was a pretty good sign it was going our way," Chairez smiles.
When the hearing was over, the appeals court ordered the INS—in language about as straightforward as the courts ever use—to make this case go away.
On Feb. 2, Mimi and Jessica and little Aisha Jawaid got an early Valentine. The INS called Don Chairez to tell him the deportation case against Sheik Muhammad Jawaid is being "terminated."
"They even took the extraordinary measure of approving his adjustment-of-status application, too," a jubilant Chairez told me.
Legal services of the kind Jawaid received from the former judge "run roughly $250 to $300 an hour," Jawaid says. "I have paid him as much as I can," but in essence, "he did it almost for free. There is really no way to measure what he did. But his work is very effective, and I think that's what I admire the most. He is an honest, hard-working man. Don Chairez is a very devoted man, for some reason."
Maybe because Don Chairez's own mother is an immigrant. His father was a U.S. soldier who died while the judge was still a boy—the father's G.I. benefits the only reason young Don was able to go to law school, at all.
"I have learned, too," Jawaid says, "once I find someone sincere, let that person take care of it."