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#345: Law challenged in deportation case (fwd)


Published Saturday, August 28, 1999, in the Miami Herald 
 Law challenged in deportation case

 By YVES COLON Herald Staff Writer 

 When do you become an American citizen?

 It's more than a philosophical question for Fredeline Dauphin. She has
been locked up at the Krome detention center for the past two weeks, and
U.S. Immigration and Naturalization officials want to send her back to
her native Haiti. Federal agents tagged Dauphin, a legal resident of the
United States, as a ``noncitizen'' more than a year ago. At the time,
she was an inmate at the Jefferson Correctional Institution in
Monticello doing 18 months for an aggravated felony. According to a 1996
immigration law, that makes Fredeline eligible for deportation.
 Dauphin, 24, says she doesn't belong in Haiti. She is an American, she
says, because her U.S. citizen father sponsored her immigration to this
country when she was only 8 years old.  The law on the issue can be
interpreted different ways. Her advocates say she's a citizen; the INS
isn't so sure, although it's considering her case. Dauphin hasn't been
back to Haiti for the past 18 years. It's a foreign country, she
 says. Deporting her to Haiti, she says, would be tantamount to signing
her death warrant. ``I'm scared for my life,'' she says. ``If I go
there, they're going to kill me. I can't read Creole, I can't write it.
I don't speak French. I have to write my mom in English and someone has
to translate it for her. People are afraid over there, that's why they
come over here. Their place is terrible.'' To the INS, it's not that
black and white. Dauphin's case in more ways than one illustrates the
complexities of immigration law, which has been changing at
 mind-numbing pace in the past four years. Her case also highlights the
gray areas into which children -- especially Haitian children in Miami
-- like Dauphin seem to have fallen. In one recent case, INS detainee
Thomas Sylvain claimed he was a U.S. citizen but was deported to Haiti,
where his health deteriorated. After an investigation, the
 INS acknowledged that Sylvain was born in the Bronx, but it was too
late. The agency flew him back to Miami on a stretcher, but he died at
Jackson Memorial Hospital after spending nearly two months in a coma.
 Dauphin is claiming citizenship through her father, Samuel Dauphin, who
never legally married her mother. ``We don't know about that in Haiti,''
said Samuel Dauphin, an orderly at Mercy Hospital. ``A woman is with a
man, she's his wife.''

 Citizenship was not sought 

 His U.S. born wife cosponsored Fredeline's immigration, and Samuel
Dauphin says he never saw the need to file citizenship papers for his
daughter or to formally adopt her. Under the law, children born outside
the United States, then brought here by their parents who have become
citizens automatically can become citizens themselves without applying
for naturalization, with some exceptions. Generally, a child born in
Haiti, for example, who comes to the United States as a permanent
resident doesn't need to apply for naturalization, if both parents go
 through the process before that child becomes an adult.
 In Fredeline Dauphin's case, there's a kink: The law also says that a
child born out of wedlock outside the United States can only claim
citizenship through the mother -- not the father. Dauphin's lawyer,
Cheryl Little of the Florida Immigrant Advocacy Center, cries foul,
believing there's a reasonable argument to be made that Fredeline is a
U.S. citizen. ``This isn't a slam dunk, but I think we should be
fighting on behalf of this woman,'' says Little. ``They're saying that
the child's mother has more right than the father in claiming
citizenship for that child and I think that's preposterous.'' The INS'
initial reaction, Little says, was to deny Fredeline's claim out of
hand. Now the agency is promising to look into it, having her file a
certificate claiming citizenship, a process that could keep her at Krome
indefinitely. ``The burden of proof falls on her,'' said spokeswoman
Maria Elena Garcia. ``Obviously, we don't want to keep her in
detention.'' Dan Kesselbrenner of the National Lawyers' Guild
immigration project in Boston says the INS should allow Dauphin to go
home to her three children while the agency figures out the case. `Why
should she suffer?'  ``They're willing to repeat mistakes that have
resulted in tragic loss of life,'' says Kesselbrenner, the project's
executive director, referring to the Sylvain case. ``There's no reason
they shouldn't release her. Why should Ms. Dauphin suffer and be locked
up because a Department of Justice that says it is concerned
 about gender neutrality is discriminating between fathers and
mothers?'' Little and Kesselbrenner argue that the statutes are
unconstitutional, and they're using legal precedent to support their
claim. In a 1998 case, Miller vs. Albright, Lorelyn Miller filed suit
against the State Department challenging the out-of-wedlock statute,
saying it was easier to get derivative citizenship through a
 mother than through a father. The Supreme Court justices did not hear
the case, but five of the nine expressed concern that the law was
unconstitutional because it treats fathers differently than mothers.
 ``It raises the issue of equal protection,'' Little said. Kesselbrenner
say the INS should not go to court over this matter. ``People in the
[Department of Justice] legal department know about the Miller
 case and they should say to themselves that they don't want to follow a
law that's unconstitutional,'' Kesselbrenner said. ``Why are they not
following the [Supreme Court's] lead?'' Meanwhile, Samuel Dauphin rues
the day he brought his daughter to this country. If she had stayed in
Haiti, he reasons, she would not have grown up with the freedoms she
found here, the troubles that landed her in jail.

 Wanted better for his children 

 A nursing assistant at Mercy Hospital, Dauphin loves the United States,
where he saw the potential for his children to get the things he didn't
have back in Haiti, such as an education and a good job.  He first went
to the Bahamas, going from island to island looking for work until he
 could get a visa to come to Miami. Here, he worked picking fruits and
vegetables, among other jobs, before he landed at Mercy 19 years ago.
 In his North Miami neighborhood, where several other Haitian families
live, people call Dauphin ``preacher.'' ``I'm always telling them, `Go
to school, finish school,' '' he says. ``I want to see them become
something.'' That's the vision he had for Fredeline, one of his four
children. Fredeline graduated from McArthur Senior High while pregnant
with her first child, who's now 7 years old. She registered for classes
at Miami-Dade Community College, but dropped out to take care of her
baby. She has two other children, ages 5 and 3. Dauphin didn't want
Fredeline to have as hard a life as he or his parents had. His
 mother would travel on a mule for two days to buy syrup to resell in
Port-de-Paix, on Haiti's northwest coast, and his father worked a small
garden plot.

 Lost welfare check 

 Fredeline says she got in trouble over a man. She was charged with
aggravated stalking, aggravated battery and aggravated assault two years
ago but was given probation. In the meantime, she lost a welfare check
she was getting when Congress cut out subsidies for immigrants. She
worked at a Publix supermarket for a year and was sorting mail at the
Pembroke Pines post office when she was charged with violating her
probation by giving a false statement. The father of her second child
was shot dead on the corner of Northwest 54th Street and Second Avenue.
The assault case stemmed from her relationship with another man, the
father of her youngest child. While she was on probation, he
 was abusive, she says, and she called the police. When they got there,
she denied that he was the man who had been abusing her. ``I didn't want
him to go to jail,'' she says. The denial was the false statement that
ultimately landed her in Krome. She says she has no one but herself to
blame. This is her first time in trouble, the first time she's gone to
jail. She wants to get out, to spend time with her children,
 who are being cared for by her 20 year-old sister. She promises her
parents she's going to change. In the past 18 months, she has seen her
children once, she says, when she was being transferred from the
Jefferson correctional center to Krome. ``I cried,'' she says. ``They
got so tall. They were looking at me asking themselves `Who's she?'
They're calling my little sister mommy.''