Thursday, April 6, 2000 | Print this story

Congress Is Often Handed Tough Immigration Cases

By NICK ANDERSON, Times Staff Writer

     WASHINGTON--His name isn't Elian. But Vladimir Malofienko's immigration case is another poignant drama playing out on Capitol Hill, where Congress often becomes the U.S. immigration court of last resort.
     Vova, as the Ukrainian boy is known, was 2 years old and living near the infamous Chernobyl nuclear plant in 1986 when an accident at the plant caused it to spew radioactive gases and particles into the atmosphere. Four years later, Vova was diagnosed with leukemia and, under a special program to help the victims of Chernobyl, came to the United States for emergency treatment.
     Now 15, he lives with his parents in New Jersey, his cancer in remission but his immigration status up in the air. The Malofienkos hope that Congress will intervene so they will not be sent back to a country where top-flight medical care is hard to find.
     Around the United States, many immigrant families with compelling stories of hardship and special circumstance continually come to Congress to seek relief from a Byzantine immigration system often bent on steering them back to their homelands.
     Moved by their plight, members of Congress frequently introduce "private" bills that attempt to preempt the administrative process. This year, more than 90 such bills await action. The controversial measure that seeks permanent U.S. residency status for Elian Gonzalez--the Cuban youngster rescued in November after his mother and 10 other Cubans drowned when their boat sank off Florida--is just one of them.

     Vova's Measure Is Bottled Up in House
     Sen. Frank R. Lautenberg (D-N.J.), sponsor of a bill to grant the Malofienko family permanent U.S. residency, has said that forcing Vova to return to Ukraine "would be placing an innocent child near the front of the line on death row."
     But Vova's bill, though passed by the Senate, so far has failed to clear the House. Aides said that the bill is hung up in a House committee that wants assurance all administrative remedies for the family have been exhausted.
     The tortuous path taken by such cases helps explain why legislation involving 6-year-old Elian faces double trouble.
     First, special immigration bills undergo strict scrutiny in the House and under established precedent must win nearly unanimous support in the chamber. That seems a dim possibility in Elian's case, which has divided both Republicans and Democrats. The many twists and turns in the case in Miami and Cuba have also given lawmakers pause.
     Second, lawmakers are aware that for every Elian there are many Vovas--and for that matter, uncounted other immigrants with heart-wrenching stories who lack the access needed just to get a bill drawn up.
     Said Rep. Jose E. Serrano (D-N.Y.), an outspoken critic of congressional intervention in the Elian case: "What we're doing here is we're opening the door for a lot of people to say: 'What about me?' "
     A bill to simply grant Elian U.S. citizenship--and thus foil attempts by federal immigration officials to return the boy to Cuba--has languished in Congress for months.

     Issue Monitored 'Hour by Hour'
     The more recent measure to give Elian permanent residency intends to shift authority over his fate to a family court in Florida. The bill also would grant that status to six of Elian's relatives, including his father, which sponsors say would allow them to fairly express their views in the court proceedings.
     Sen. Connie Mack (R-Fla.), a key proponent of the new bill, said that the Republican-controlled Senate soon could take it up and that he is monitoring momentum shifts on the issue "hour by hour."
     As a potential fallback, Mack has floated the idea of a nonbinding resolution to urge the government to allow Elian to be examined by an independent panel of psychologists to help determine whether the boy should stay in the United States or return to Cuba.
     In the House, lawmakers and aides say, it also is conceivable--though unlikely--the GOP leadership could break with precedent because of the extraordinary circumstances of the case and seek an up-or-down majority vote on the bill to give Elian permanent residency.
     Only a dozen private immigration bills have passed in the last six years, down from hundreds in the 1950s and '60s. In part that is because lawmakers have grown wary of accusations of favoritism or impropriety.
     Allegations surfaced in 1969 of improper campaign contributions and gifts to Washington lobbyists in exchange for hundreds of private bills introduced to help Chinese seamen escape deportation. And roughly a decade later, the ABSCAM sting, in which undercover FBI agents posing as Arab sheiks or their representatives offered bribes to obtain private immigration bills, helped force seven members out of Congress.
     Sometimes the bills are brought on behalf of celebrities, which can work to their advantage or disadvantage. Television actor Michael Wilding, a British subject and son of actress Elizabeth Taylor, became an American citizen after passage of a 1988 bill, even though he had a 1974 conviction for marijuana possession. That conviction, under other law, would have barred his immigration.
     But in another notable 1988 case, Congress refused to pass a private bill to allow tennis star Ivan Lendl to bypass a five-year waiting period required for U.S. citizenship.
     California, with more immigrants than any other state, has spawned many of the private immigration bills. In the last two years, several California lawmakers have carried such bills, including Democratic Sen. Dianne Feinstein and Reps. Ellen O. Tauscher (D-Pleasanton), Matthew G. Martinez (D-Monterey Park) and James E. Rogan (R-Glendale). In fact, Rogan and Feinstein teamed up on the only private immigration bill to be passed in the current Congress.
     The Rogan-Feinstein law cleared the way for a Thai immigrant named Suchada Kwong to become a permanent U.S. resident. Kwong, 33, who lives in Washington state but has relatives in California, asked for help after her husband--a U.S. citizen sponsoring her immigration--died in a car accident before the couple could give a required interview to the Immigration and Naturalization Service. As a result, she faced deportation if Congress had not acted.

     Feinstein Offers 2 Private Bills
     In January, Feinstein also introduced private immigration bills on behalf of two Southern California teenagers: Tony Lara of Northridge, a native of El Salvador who overcame high odds to graduate from high school and become a state wrestling champion, and Guy Taylor of Garden Grove, a Canadian national who has lived with his grandmother since being orphaned when he was 16.
     But even as she pitched those bills, Feinstein said that Congress should beware of playing favorites in such a tangled, emotional field as immigration law.
     "I have received scores of phone calls from citizens in California who say if this child [Elian] were Salvadoran, if he were a Mexican child, if he were a child from China, the child would be sent back to his country," Feinstein said in a speech urging Senate rejection of the bill granting the boy citizenship.