COEUR d'ALENE - Confusion about the paperwork required for legal immigration could mean a Coeur d'Alene businesswoman will have to close her restaurant and move to Mexico so she and her son can be with her husband and father of the child.
Colomba Aguilar, a U.S.-born and raised citizen who has operated Cafe Carambola for nearly five years, will likely have to wait a year before her husband, Carlos, can return to the U.S. legally to be with her and their 4-year-old son.
Because of one missing form she says immigration officials failed to tell them was necessary, Carlos could be barred from re-entering the country for a decade.
"He got a tourist visa, with no intention of staying," Colombo said. "Once the decision was made to move here, we contacted the immigration office in Spokane."
The process seemed fairly simple, but it proved to be anything but.
Colomba attended a culinary school in San Francisco and was serving an internship in Cancun, Mexico, when she met Carlos, a diving instructor. A year later they were married, and in 2005 when it was time for her to have their child, he obtained a tourist and business visa good for six months so they could come to the states, and while here he could shop for equipment.
"The clinics there are scary," she said.
She has family in the Coeur d'Alene area, and the couple decided to move to North Idaho and start the business, which opened in June 2005. In February 2006, as the six months on the original visa was about to expire, they filed the paperwork for him to be able to remain as the alien spouse of a U.S. citizen.
Somewhere along the line, one important form was missed, and it is proving devastating for the family.
"When Colomba told me that Carlos had to go to Mexico for his interview, I knew immediately that they neglected to tell her she needed to file an I-485 in order for him to be permitted to remain in the United States legally," said Cynthia Yializis, a Pittsburgh, Pa., immigration attorney hired by a customer of the cafe to help. "The I-485 is the application for permanent residence (i.e. green card application). I knew this because if he had filed the I-485, the interview would have been in the United States and the National Visa Center would not have been involved at all."
The immigration process began under the auspices of the U.S. Citizenship and Immigration Services, one of three agencies created in 2003 from the former Immigration and Naturalization Service and U.S. Customs. USCIS is under the auspices of the U.S Department of Justice and was one of the offshoots of the creation of the Department of Homeland Security in the wake of Sept.11.
When Carlos went to Juarez, Mexico, for his interview to determine his eligibility to remain in the country, it was with the National Customer Service Center, also known as the National Visa Center, a division of the U.S. Department of State and the U.S. Consulate.
"The first thing they asked him was, 'How long have you been an illegal immigrant,'" Colomba said.
That was in December. His visa was taken from him, and the family was required to file for a 601 Waiver to apply for readmission to the U.S. That is for applicants who have overstayed their visa by more than six months but less than a year, said Sharon Rummery, Regional Media Manager for U.S. Citizenship and Immigration Services in San Francisco.
An alien who overstays his visa for that length of time can be barred from re-entry to the state for three years, if a year or longer, for 10 years, she said.
"If they file for a 601 Waiver and it is not approved, they can come back and present additional information," she said. Currently, she said, the backlog is 10 to 12 months.
Colomba filed a 27-page hardship packet, explaining that Carlos is the primary caregiver for their son, while she puts in 10 hours. Her parents put a mortgage on their home to finance the business, and she is paying off large college tuition loans.
The request was denied.
"It is an outrage," Colomba said.
Her son is acting up in the absence of his father, and her mother is caring for him when he is not in preschool three days a week.
"I have witnessed some oversights by USCIS that have been devastating," attorney Yializis said. "Carlos' situation is one such example. He and Colomba tried to do the right thing, they went to USCIS for guidance, followed their instructions and because those instructions were wrong, her husband is potentially barred from returning to his family in the United States for 10 years. And because they believed they were doing the right thing, they are completely blindsided and unprepared for this."
Not only the unnamed customer who is helping with the legal battle, but others in the community are rallying around the Aguilars. Hundreds have signed a petition seeking reconsideration, and Colomba has a stack of letters of support.
"Here is a couple who have come to our community and brought wonderful food and ambiance and worked to be a success," said Marlo Faulkner, who is helping organize support. "Those are the kinds of people who should be emigrating. She is a U.S. citizen. How can the government do this to her because of a bureaucratic snafu? It's appalling."
Colomba is prepared to wait out the year, hope for the best outcome, and not have to close the restaurant and move to Mexico to reconnect the family.
"I have to," she said. "This is our livelihood. Our standard of living would decrease, and there is the safety issue. I don't want to raise a family there."
And the family is the bottom line for her. If the appeal is denied, and Carlos is barred from the U.S. for a decade, "I would be forced to relocate to Mexico," she said.
Cafe Carambola is at 610 W. Hubbard, Suite 110.