Ineligible Children Face Deportation, INS Says : Such Offspring Can Remain Only if Both Parents Qualify for Amnesty; Spouses Also May Be Ejected

By JOSH GETLIN

Oct. 22, 1987 12 AM PT

Times Staff Writer

WASHINGTON — In a ruling that could affect thousands of illegal aliens, it was announced Wednesday that children who do not qualify for amnesty under the nation’s new immigration law may be deported unless both their parents have received such protection.

The announcement was made by Alan C. Nelson, commissioner of the Immigration and Naturalization Service, who disclosed also that adult aliens who do not receive amnesty may be deported “with no special protection,” even if their spouses are eligible for legal residence in this country.

‘Clear the Air’

The new regulations were intended to “clear the air” over the law’s impact on families, Nelson told members of a congressional subcommittee. But critics charged that the guidelines would confuse thousands of aliens and discourage them from applying for legalization.

In particular, several members of the House Judiciary Committee’s subcommittee on immigration, refugees and international law said the deportation of minor children who do not qualify for amnesty was disruptive to families and contrary to the intent of Congress.

“The new immigration law was intended to be compassionate and generous,” said Rep. Romano L. Mazzoli (D-Ky.), who helped to write the legislation and heads the subcommittee. “It seems to me that children ought not to be sent away under any circumstances.”

Under the new immigration law, which was approved last November, aliens may apply for legal residence as part of a 12-month amnesty program that ends on May 4, 1988. The government is required to grant residence to those who can document that they have lived continuously in the United States since Jan 1, 1982. Those who do not receive amnesty are subject to deportation.

In recent months, immigration officials have said that thousands of aliens appeared to be confused over the law’s effect on families--especially cases involving children and those in which one person in a family qualifies for amnesty but other members do not.

Guidelines Announced

Nelson, seeking to establish a uniform policy, announced guidelines requiring that:

--Minors who are not otherwise eligible for resident status would be included in any grant of amnesty given to their parents. However, the children would be subject to deportation if either parent in a two-parent household failed to qualify. In a one-parent household, the parent with whom the children were living would have to qualify for the children to avoid deportation. The agency would make exceptions only for reasons of extreme hardship, such as illness or a physical handicap, Nelson said.

--In a family in which one member has received amnesty but a spouse has not, the spouse would receive no special protection and would be subject to deportation. Cases could be reviewed individually for “special circumstances,” Nelson said, but in most situations “the fact of a relationship alone is not enough.”

Although the new law does not specify how families should be treated, Nelson said, it gives the INS ample basis for issuing such guidelines, especially the granting of amnesty to children. But the legislation does not permit the agency to grant special protection to a spouse who fails to qualify for permanent residence, he said.

Several congressmen sharply disagreed, contending that the agency has discretion to do far more than it has under the law. They suggested that the INS take another look at the problem of dividing families, charging that the new guidelines could potentially affect thousands of aliens who are confused about the law.

‘Why Not a Family?’

“I fail to understand why it’s unthinkable to deport children if parents qualify, but it’s not unthinkable to deport parents if they fail to qualify,” said Rep. Howard L. Berman (D-Panorama City). “If you have the discretion to protect children, why not a family?”

When Mazzoli said the new policies would harm young families, Nelson reacted angrily.

“Don’t you put us in the position of breaking up families, because we’re following the law,” he shouted. “We’re going to be sure that there’s fairness between the legal immigrant who waits in line and the legalized alien. That’s the whole point.”

Nelson said it would be unfair to grant special favors to illegal aliens and make other immigrants wait years for visas to bring their families to the United States. But several critics said illegal aliens are seeking more basic protection.

“What we wanted to hear was that, for all children, for all family members who may not qualify for amnesty, there would at least be a protection against deportation,” said Rick Swartz, director of the National Forum on Immigration, based in Washington.

“That’s the main consideration, the main priority for thousands of people,” he said. “And that’s precisely what we didn’t hear from the agency.”