Counting Birthdays

December 19, 2011 § Leave a comment

By Cory Bennett and Rebecca Ellis

Birthdays are how Sanjana Hussain, 8, marks time. Her dad hasn’t been home in three birthdays: hers, her dad’s and her sister’s, Sebreena, 13.

The girls’ father, Taimur Hussain, has been held in immigration detention the last nine months, facing deportation for overstaying his visa after coming to the United States from Bangladesh 16 years ago.

“One day it was Fathers’ Day and I made stuff for him and was really sad I couldn’t give it to my dad,” Sanjana said.

Sanjana is among the more than 4 million U.S. citizen children who have at least one parent who is undocumented. Detention and deportation take an emotional toll on these mixed-status families.

In the last decade, the number of children with U.S. citizenship but undocumented parents has increased from 2.7 million in 2003 to over 4 million in 2008, according to a 2009 Pew Hispanic Center report. The increase in these types of families has highlighted the long-standing issue of whether undocumented parents should receive leniency because they have U.S. citizen children.

According to David Thronson, an immigration law professor at Michigan State who has published several articles on children and family rights in immigration law, the argument that a parent’s deportation will harm children and their U.S. citizenship is one of the most frequently used, and repeatedly dismissed, arguments in deportation hearings.

In an article for the Nevada Law Journal, Thronson pointed to multiple immigration cases in the United States Circuit courts where, “As a starting point, courts are quick to assert that ‘[c]itizen children have, of course, an absolute right to remain in the United States.’”

But lawyers and activists have argued that deporting the parents of citizen children impacts their rights as a U.S. citizen because the removal of their parents all but guarantees the child’s exit. Repeatedly, the courts have ruled against this notion.

“These claims have been rejected uniformly by courts in virtually every circuit,” Thronson wrote. “The court views the children’s possible removal from the United States not as a governmental decision but rather as a parental choice.”

There are two grounds on which a “mixed-status” parent can have a deportation order commuted.

The U.S. Attorney General is given the authority to cancel the removal of an individual if the person has been in the United States continuously for 10 years or more, has not been convicted of any crimes and can establish that the removal would create “exceptional and extremely unusual hardship” for a spouse or child that is a U.S. citizen, according to the immigration reforms of 1996.

Repeated court decisions in deportation cases for “mixed-status” families have set a high standard to prove “hardship.” Arguing that an undocumented parent’s deportation will deprive citizen children of economic or educational advantages has not met the “hardship” standard in court.

Immigration officials can also defer an ultimate decision on a deportation based on new guidelines the Obama administration issued on June 17, 2011. The directives, outlined by U.S. Immigration and Customs Enforcement Director John Morton, gave immigration judges the ability to use “prosecutorial discretion” to commute deportations when reviewing the current stack of 300,000 deportation cases.

If the potential deportee has lived in the United States since childhood, is a minor, seriously ill or pregnant, the case warrants “particular care and consideration” for deferred action on the decision to deport. Among the secondary issues to consider, the memo lists, “whether the person has a U.S. citizen or permanent resident spouse, child or parent.”

The Hussains could benefit from the second criteria, according to Naresh Gehi. His law firm is representing Hussain.

Additionally, a 2001 Supreme Court ruling, Zadvydas v. Davis, concluded that the government needed to justify detaining an immigrant for over six months by displaying an intent to deport in the near future or extraordinary circumstances.

“This is a textbook case of someone who should have been released by now,” Gehi said.

Meanwhile, the Hussain children live with day-to-day uncertainty of what will happen to their family.

Without their father’s income from his work as a chef, the family had to move out of their apartment in Astoria, Queens. The family is now staying with family friends.

Sebreena remembers how sad it made her dad when he couldn’t send a card to his youngest daughter on her birthday. Sanjana recalls the first time she visited her father in detention. She tried to take him home, not comprehending the nature of detention.

“I never saw my father cry like that,” Sebreena said. “I don’t like seeing him cry. It’s very emotional. He prays day and night to come home to our family.”

Seeing a parent emotionally hurt can significantly impact children, who often see their parents as their rock, according to Mary Alvord, a psychologist and adjunct associate professor of psychiatry and behavioral sciences at George Washington University School of Medicine and Health Sciences.

“When you see a parent as vulnerable, it’s initially a shock,” she said. “Your in this dream like cloudy state.”

Alvord has done extensive research on anxiety and resiliency in young children, adolescents and teenagers. She calls having a parent suddenly detained a traumatic event. There’s uncertainty, confusion and a lack of understanding about what and why things are happening.

“Children really have no concept of permanence,” Alvord said. “So if something suddenly happens, even death, they don’t understand that it’s a permanent concept. The older you are the more you are able to process this.”

Beyond the daily uncertainty and turmoil that Hussain’s detention has caused, Sabreena remains mostly concerned about the possibility that her entire family will be uprooted and moved to Bangladesh. Hussain’s deportation would not mandate deportation for the rest of the family, but Sabreena believes the family would likely have to follow Hussain.

Aarti Kohli, director of immigration policy at the Warren Institute of Law and Social Policy at the University of California, Berkeley Law School, recently completed research that looked at, in part, the effect that parental deportation has on the family structure.

While it is hard to put a percentage on the amount of children that do follow deported parents, Kohli’s found that if both parents are deported, the children follow if they are younger than teenagers. If one parent is deported, families frequently separate, with the non-deported parent staying with the children.

“I think there is no question this has a deep impact on these children,” Kohli said, adding that she often hears of immigrants seeking lawyers to help set up guardianship plans in the event they are deported. “That gives you a sense that this is a real fear hanging over these people.”

And it’s a fear hanging over the Hussain family. The parents originally came to the United States in 1995. The mother, Sabina, said the family feared political persecution in Bangladesh because Taimur was a member of the Jatiya party. According to the U.S. State Department, Bangladesh suffers serious political dysfunction and corruption, but has remained a parliamentary democracy since its 1971 independence from Pakistan.

1995 was a time of political turmoil in Bangladesh. Alleging that the ruling coalition had rigged an election, the opposition political parties, including Jatiya, resigned from parliament, demanding a neutral party caretaker government take over and supervise a new general election. It wasn’t until June of 1996 that a neutral body oversaw a general election, ending the political strife.

By then, Hussain had left for the United States and applied for political asylum, which was denied. Today, Jatiya holds a small, minority share of seats in parliament.

“Life is very harsh there,” Sabreena said, translating her mother’s Bangladeshi. “It’s not very safe there. They come after you. People die. Their treatment is not as good as here.”

Fourteen years and two children later, Hussain approached a lawyer about reopening the asylum case, which was again denied. After he filed for an appeal with the Board of Immigration Appeals, the highest administrative body for interpreting and applying immigration laws, his case was referred to U.S. Immigration and Customs Enforcement. Originally granted a six-moth extension in November 2010 for his deportation hearing, Hussain was detained during his second hearing, March 10, 2011.

Sabreena remembers getting home from school around 4 p.m. that day and being curious why her father wasn’t home from his hearing yet. The next morning, the Hussain family found out their father was locked up in a detention center in Elizabeth, N.J.

And like that, Hussain’s children were without their father.

Sanjana was without her TV-watching partner, the man who joked with her while drinking tea, pretending a cat was a monkey. Sabreena was without her lunch partner.

“When my father was around, we used to hang out a lot,” she said, playing with a folder of cards she has written for her dad on various holidays. “I was able to tell him stuff. We would go out to lunch. Now we don’t really go outside places. It’s really sad. I don’t really do anything now.”

Sanjana smooths out a drawing she did at school. It reads “My Family” across the top. Under a blue sky, on the far right of the page is a skinny, boxy drawing of “Daddy.” Between him and his family is a drawing of a heart. Dark pencil lines depict tears running down the faces of “Mommy,” and his daughters.

The children get to see their father roughly once a week, whenever a family member or family friend is free to take them one-hour drive to New Jersey.

When the family can deposit money in an account for Hussain to make calls, his daughters will get to talk to him up to twice a day for as little as a minute.

They talk about daily life. Hussain gives Sanjana a hard time for running late to school. He asks what she is eating and when she is going to bed.

At home, the Hussain’s look forward to Christmas, which they usually celebrate with their neighbors and exchange small gifts.

Both Sabreena and Sanjana said they hope their father will return home soon. Sanjana mentioned the two dates she wants her father home.

January 1 is her mother’s birthday. Jan. 25 is her oldest sister’s birthday.

“I just want him to back home so we can celebrate,” Sanjana said.

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