Wearing a somber face and a maroon raincoat, Simei Yang paced in the rain on a recent morning outside the U.S. Immigration and Customs Enforcement office on Capitol Mall. She wondered if this would be her last day in the United States and whether she, her husband and their two children would be deported to two different continents.
She hugged her husband, Yu Yan Shan, before he went to meet his deportation officer at 8:30 a.m. Their oldest son, Chie Hong Yee, 19, was summoned inside.
Yu and his wife left the People's Republic of China and its one-child policy more than 30 years ago and moved to Colombia, where they opened several restaurants and had two sons. They say they fled Colombia for the United States in 2002 because they were being victimized by violent gangs.
But they overstayed their visas and are on the verge of deportation: Yu and his wife to their native China; their sons to Colombia, where they were born.
The family is among hundreds of thousands of undocumented immigrants facing deportation who hope to stay in the United States based on a new federal policy that gives prosecutors more discretion over who is deported.
The Yu case is particularly unusual because the family could be split up. The parents no longer have legal status in Colombia, and the sons, ages 19 and 16, have no legal connection to China.
Their lawyers say they are exactly the kind of family who should benefit from the prosecutorial leeway the Obama administration injected into the immigration process last year: They have jobs, own a home, pay taxes and volunteer at their church. Their sons are A-students who hope to become engineers.
"The children have fantastic prospects in science, engineering, technology and math, which (President Barack) Obama's encouraged from Day One," said attorney Chung N. Phang, noting the family's only crime was overstaying visas. "Splitting the family would be unconscionable."
Phang and partner Drew Sieminski hope to make the Yu case a test of the administration's new policy, which ICE has cited in setting aside thousands of deportation cases to focus on removing undocumented immigrants who have been convicted of crimes.
The Yu family – among an estimated 11 million undocumented immigrants in the United States – wouldn't be on the brink of being divided if they hadn't tried to get legal status by applying for asylum in 2003, their attorneys say.
They were ordered deported after the federal courts rejected their bid for asylum. They claimed that they feared persecution in China for violating that country's one-child policy, and that in Colombia, they were targeted by gangs because they were Chinese.
"It's sad they're obeying all the rules which are trying to break them apart," Sieminski said. "They could have gone underground a long time ago with millions of other people and disappeared into the woodwork."
Prosecutorial discretion, outlined in a June 2011 memo from ICE Director John Morton, was designed to reduce the backlog of deportation cases and make efficient use of the agency's resources. The memo calls on immigration officers to weigh various factors in deciding which cases to pursue, with the goal of speeding deportation of criminals and stopping proceedings against immigrants with clean records and strong community ties.
Last year, immigration officials began reviewing 300,000 pending deportation cases using the new guidelines. More than half the cases have been reviewed so far, and about 15,000 set aside. That doesn't make the immigrants legal residents, said ICE spokeswoman Barbara Gonzalez; it just means they aren't slated for deportation: "If they commit a crime, we can reopen the case."
The Yu family should qualify on a number of counts, Siemenski said: "The criteria was designed to figure out which cases to set aside when they have limited resources. In this case, the government is choosing to expend our valuable resources to deport a family to two different places. Under prosecutorial discretion, this should not be a priority."
But the Yu case is not among the 300,000 cases under review, because they had already been ordered deported when the guidelines were introduced.
After an eight-year legal battle that went to the 9th Circuit Court of Appeals and the federal Board of Immigration Appeals, "the courts have consistently held the family does not have a legal basis to remain in the United States," said ICE spokeswoman Virginia Kice.
All four could be put on planes as soon as ICE secures the necessary travel documents from consular officials in China and Colombia. The parents have been given Chinese passports; the sons received their Colombian passports Friday.
"My kids came here when they were really young," Yang said. "They're not streetwise and have no notion of how to survive in Colombia – it's like pushing them into the fire pit."
The family's improbable journey began where thousands of Sacramento Chinese can trace their roots: Taishan county in south China. Yang was working in a jewelry factory when she met Yu, a rice and vegetable farmer, at a party. They married eight months later.
Yu was making less than $20 a month farming when a relative offered him a $100-a-month job in a chop suey restaurant in Barranquilla, Colombia, in 1984.
"My life was poverty in China. People can't think or speak freely; the (Communist)Party controls everything," said Yu, 52. "My wish was to have two or three children."
Yang said she was frightened but had confidence in her husband, who moved up from busboy to a job as a ranch manager making $400 a month, and brought her to Colombia in 1991 to start their family.
The Yus opened two successful Lok Yuen ("Happy Garden") restaurants, specializing in chop suey, chow fun and fried rice. They say they brought in about $2,000 a month, bought a three-bedroom apartment and sent their sons to a private American school.
But life in Colombia turned bad, they said, once they started making money. They said their son, younger Kawah, was kidnapped at one point and ransomed for $3,000. Their restaurants were robbed and vandalized, they said, because they refused to pay protection.
"I was near the kitchen when I heard gunshots, and I saw bullet marks hit the walls," recalled Chie, the older son.
So they sold everything in 2002, flew to Miami and took a Greyhound bus to California, where they had relatives. The family settled in Sacramento, where Yu got a job as a butcher and three years ago bought a four-bedroom house in the Creekside section of Sacramento.
Soon after they arrived, the Yu family applied for asylum, claiming fear of persecution if they returned to China, where they claimed they faced sterilization and fines for violating the one-child policy. They also argued that they had been targeted by Colombian gangs because of their ethnicity.
The court did not dispute their story. But an immigration judge ruled that although the family suffered "significant harm" in Colombia, the kidnapping and robberies were motivated by money, not prejudice.
The judge also noted that China had relaxed its one-child policy, and said it was not clear whether Yu and his wife would be sanctioned upon their return.
Yu and his wife, who never got past seventh grade in rural China, said nothing matters more to them than their sons' future. Chie was valedictorian at Sacramento's School of Engineering and Sciences, and Kawah is following in his footsteps. The family has collected nearly 300 testimonials from teachers, bosses, parents and pastors.
"They've blossomed in the U.S.," Yang said. "What's going to happen to their education?"
On Wednesday, San Francisco ICE field director Timothy S. Aitken denied the family's request for deferred action, which would put the deportation on hold, because of "the lack of compelling circumstances." Aitken noted that the family already had been afforded some prosecutorial discretion by not being deported to date. ICE said it has delayed the court-ordered removal to give the family every chance to leave together.
ICE officials declined to speculate about what happens next. The family has been ordered to report to immigration authorities in July, and could be deported then, said Phang, the attorney.
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