Original URL: http://www.tucsoncitizen.com/index.php?page=local&story_id=081203a1_guatemalan_&PHPSESSID=b11e95ea3f0bd3f4e90f01e155a23348

Man ordered deported to land he's never seen
Arizona Republic Nogales Bureau
 AUGUST 12, 2003

A 24-year-old Guatemalan man whose mother carried him as a baby illegally into the United States must be deported, the 9th U.S. Circuit Court of Appeals has decided.

But in a strongly worded addendum, the court said the result of its conclusion that Jose Didiel Munoz cannot remain in this country, though based on the law, "appears pointless and unjust."

The San Francisco-based court suggested the executive branch or Congress give Munoz reprieve.

Munoz's mother smuggled him into the country in 1980, when he was less than 1 year old. He speaks English, graduated from high school in United States and never has returned to his birth country, according to court records.

He has no known relatives in Guatemala and all of his immediate family, including his mother and half-siblings, live in the United States.

Through a series of quirks, Munoz was ineligible to adjust his legal status and may have set the stage for deportation by showing up at the Immigration and Naturalization Service at age 18 to try to become a legal resident.

Munoz effectively "faces exile to a country to which he is a stranger," Judge Richard R. Clifton wrote in the opinion filed Friday.

Based on the law, the appellate court denied Munoz's appeal of an order of the Board of Immigration Appeals to stay in the United States, but did so "with regret."

The ruling stated: "The result - removal of Munoz from the only country he has ever consciously known - appears pointless and unjust.

"There is no indication that Munoz is anything other than a law-abiding, contributing member of our society. He cannot be faulted for the fact that his mother smuggled him into the country when he was a baby."

Two University of Arizona law students took Munoz's case, donating their time under the supervision of law school Assistant Dean Willie Jordan Curtis.

It is not clear from court documents where Munoz lives or when he will be deported.

'Unusual' decision

Marshall Fitz, associate director for advocacy for the American Immigration Lawyer's Association, said the court's efforts to make known its disapproval of the law is "unusual, but not unheard of when it is faced with what it deems as an unjust result."

"The 9th Circuit is well known for ensuring the rights of immigrants are protected through the judicial process," he said. "The circuit does have the reputation for being sort of a vanguard on these issues.

"To me, this case exemplifies the rigidness of our immigration laws and the harsh consequences that result. What more could this kid do? He was just in an impossible bind."

Munoz tried to fix his legal status by applying for asylum in August 1997.

In the application, he stated he wished his mother had filed for him long ago, but now that he is older, he wants to take care of the situation himself.

In the application filed with the INS, Munoz wrote that "now I am a teenager ... with the desire to improve myself. But, to be illegal in this country takes away the opportunity to become someone with a good future.

"To tell the truth, I cannot go back to my country since I have spent all my life in the United States. My school is here. My friends are here. If I return to Guatemala, according to what I have heard, it will be like entering to hell because Guatemala is in a very bad situation due to the 36 years of war"

The INS denied the application and issued a notice to appear, charging Munoz with "removability," according to the opinion.

His lawyer at the time urged him not to follow through with the asylum petition, court records state.

Munoz followed his attorney's guidance but, the opinion stated, now regrets the decision.

Other avenues tried

Another legal avenue was shut down because Munoz's mother did not apply for asylum on his behalf before he turned 18.

Also, he could have been granted legal status because his stepfather was in the United States legally, but because his mother did not marry until he was older than 18, Munoz again was ruled ineligible.

"Munoz's plight is made even more painful because he has missed out on opportunities to resolve his legal problem through no fault of his own," the court stated.

"He appears to have applied for asylum after he turned 18 in a deliberate effort to bring himself within  the law. It may well have been that act which brought Munoz to the attention of the INS and started him down the road to deportation. If so, it is a cruel twist for that outcome to result from trying to
do the right thing."

Munoz's status remains unclear.

The UA law students who argued the case - Elizabeth Berenguer and Taren Ellis - were out of town and unavailable for comment.

The Justice Department's Office of Civil Immigration Litigation was unavailable for comment yesterday.

The court made a clear appeal on Munoz's behalf in the closing sentences of the opinion:
"We are unable to grant Munoz's petition, but we hope that appropriate officials within the executive branch, or possibly Congress, will take a careful look at this case and, if the facts are truly as they appear to us, consider whether removal of Munoz is really the just and proper result here."