Wrinkle in immigration law allows California man to stay in U.S.

The Sacramento BeeJanuary 17, 2012 

Davis waiter Rogelio Servin entered deportation proceedings in San Francisco earlier this month and came home a legal resident, thanks to a little-used wrinkle in immigration law.

Servin, 32, was a boy when he came here from Mexico with his family without documentation. After 20 years worrying about whether he might be deported, he rushed home after the decision to celebrate with his wife, Juana, daughters Diamond and Princess, and Romeo, his baby boy.

Servin's Sacramento legal team of Daniel Karalash and Janell Clayton argued that Servin, who had a felony conviction stemming from a domestic dispute, had turned his life around and deserved to stay in the country to support his wife and children, all U.S. citizens.

They also made the case that Servin, as a boy, had been "inspected and admitted" at the border, a still-developing concept in immigration law that could help thousands of undocumented immigrants on their paths to citizenship if they weren't stopped at official border crossings when they entered the United States.

Servin's case stems from a 2010 ruling by the federal Board of Immigration Appeals, which found that a woman facing deportation, Graciela Quilantan, had in fact entered the country legally when she crossed the border without documentation in 2001.

Quilantan, the wife of a U.S. citizen, was in a car driven by a U.S. citizen. Because she wasn't trying to sneak across and hadn't been questioned by the immigration officer who waved them into Texas, the court found she had been "inspected and admitted" legally.

Experts are still digesting the ruling and its ramifications.

"This has many of us immigration professors scratching our heads," said McGeorge School of Law professor Raquel Aldana.

The case doesn't apply to millions of undocumented immigrants who crossed rivers, mountains and deserts, evading U.S. immigration officials. But about half of all undocumented immigrants either walked or drove through official checkpoints and just weren't stopped and questioned, Aldana said. Some were prepared to make a case for entry; others took their chances that they would be waved through, a more common occurrence before the border inspection process tightened in 1996.

The ruling seems to apply to a narrow subset of undocumented immigrants who are immediate relatives of U.S. citizens. The idea is that they shouldn't be deported if immigration officials made a mistake letting them in in the first place, Aldana said.

The 2010 ruling "isn't a silver bullet for undocumented immigrants," said UC Davis Law School Dean Kevin Johnson. But under the right circumstances it could tip the balance for some of the thousands of immigrants stuck in deportation proceedings, he said.

"We haven't seen a flood of these cases since the 2010 decision," he noted. "The facts of the Servin case are so extraordinary it couldn't happen very often."

A long, odd road

Servin was born in the city of Zamora, in the state of Michoacán. When he was 4, his 2-year-old brother, Gilberto, nearly burned to death in the family's cornfield when a straw house the boys were playing in caught fire.

Gilberto was severely burned and he lost some of his fingers, Servin said. When treatments in Mexico didn't work, an uncle took Gilberto to Shriners Hospital in San Francisco. He was later transferred to Shriners Hospitals for Children Northern California in Sacramento.

In 1992, Servin's family decided to go to California to be with Gilberto. They planned to argue to border officials that they should be allowed to cross to visit an ailing family member.

Servin and his mother, Rosa, said that at the San Ysidro crossing, an immigration officer waved them through without questioning them. Servin, then 12, remembers walking across and being picked up by a friend; his mother, on the other hand, recalled being driven from Tijuana to Davis, where the family built a new life.

Servin graduated from Davis High School in 1998, became manager at a Wendy's restaurant and married Juana Huerta, then 17, in 2002.

A year later, the day he lost his Wendy's job, he and Huerta fought, she said. She said she threatened to move out and tried to leave and that Servin blocked the door. He was arrested and convicted of false imprisonment, a felony, in January 2003 and served three months in Yolo County jail.

The couple reconciled and Servin got new work as a bartender and restaurant manager. Last year, he took a job as a server at Tres Hermanas in Davis.

Gilberto, after a decade of treatments at Shriners, also stayed in California, where he had two children. After running into legal problems, he was deported in 2010.

Servin and his wife took in his brother's children, then 5 and 6.

"They didn't have shoes when I took them home," Huerta said. "We took care of them for a year and a half."

Last April, Servin was driving to work, blasting rap music, when he was pulled over, given a Breathalyzer test and charged with drunken driving.

It turned out to be the best thing that ever happened to him, Karalash said.

Ruling key, for how many?

The U.S. Department of Homeland Security, after learning of Servin's DUI, put him in deportation proceedings because he was a convicted felon who allegedly had entered the United States illegally.

He spent seven months in Sacramento County jail fighting his deportation.

"Our daughters kept asking, 'When is Dad going to come home? What does an ICE (Immigration and Customs Enforcement) hold mean? Is he a criminal?' " Servin said. "I'd tell them, pray for me; I'm going to come home soon and take them to Baskin-Robbins."

Huerta hired Clayton, a paralegal in Karalash's office. When Clayton heard Servin's story, she thought the "inspected and admitted" ruling applied and filed a brief in support of lawful admittance in December.

Karalash and Clayton were able to convince San Francisco immigration Judge Michael Yamaguchi that Servin had entered the United States legally because his family had been "waved in" when he was brought over the border as a boy. She also argued successfully that Servin's deportation would cause extreme hardship to his wife and children.

"All the stuff I did was in the past," Servin told the judge. "My wife isn't working and can't take care of three kids – if you take me they're going to become homeless. Give me a chance to stay and provide for my kids."

There were two parts to the ruling allowing Servin to stay: He was judged to have come in legally because he was "inspected and admitted" and he was awarded his green card because he was his family's sole supporter.

Homeland Security officials declined to discuss the case or speculate on the impact of the Texas ruling.

But Clayton said she and Karalash have four other clients they think could benefit from the case law.

"It's hard to speculate how many immigrants this could help because it is judged on a case-by-case basis on how they entered, but there's a vast population that has driven over in a car and entered legally," she said.

On Dec. 9, Yamaguchi let Servin go home to spend Christmas with his family. On Jan. 6, he authorized Servin's green card. The government has 30 days to appeal.

"He said, 'What's given to you can be taken away (for bad behavior), and I see you've been good for eight years,' " Servin said. "I didn't know whether to cry or jump for joy.

"When I told my kids they don't have to worry about it anymore, Daddy's going to be OK, they were very happy for me," he said.

That weekend, as promised, he took them out for ice cream.

To read more, visit www.sacbee.com.

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