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Legal error may split parents, disabled girl

Attorney twice fails to submit papers. Mother wins new day in court.

October 30, 2008|Anna Gorman | Gorman is a Times staff writer.

Jose and Maria Galvez paid an attorney $5,000 to file an appeal after losing their immigration case.

But the attorney, Carlos A. Cruz, didn't turn in the required documents and the U.S. 9th Circuit Court of Appeals dismissed the case. Cruz got the case reopened but then failed to submit documents again, resulting in a second dismissal.

Immigration agents deported Jose Galvez last month and set a deadline for his wife and 19-year-old daughter to leave the country.

Maria Galvez hired a new attorney, who filed an emergency motion to reopen the case based in part on the incompetence of the previous lawyer. The 9th Circuit ruled earlier this month that the case could be reopened.

But immigration attorneys worry that a recent request by U.S. Atty. Gen. Michael Mukasey may jeopardize their ability in the future to get cases reopened based on similar grounds.

Mukasey asked attorneys to submit briefs on whether there is a constitutional right to effective assistance of counsel and whether immigrants should be entitled to relief based on their claims of an incompetent attorney. Justice Department spokesman Charles Miller said that the order applies only to specific cases and that Mukasey is not considering a policy change.

But the American Bar Assn. submitted a letter to the attorney general's office saying that it "considers the right to effective assistance of counsel in immigration matters to be of the utmost importance" and that immigrants can suffer "grave consequences" when mistakes are made. The American Civil Liberties Union of Southern California also wrote a letter to the U.S. attorney general, citing precedent that immigrants should not be deported solely because of the mistakes of their counsel.

"The outcome of your review has the potential to radically change the immigration system in a fundamental manner," the ACLU letter read.

The Galvez's new attorney, Stacy Tolchin, said the incompetence the family encountered is not unique.

"This is a huge problem, attorneys not following through," said Tolchin, of the Los Angeles office of Van Der Hout, Brigagliano & Nightingale. "They take the money, they file one document, they do nothing and the people are deported."

Barbara Coe of the California Coalition for Immigration Reform said the Galvez family -- and millions of other families -- violated immigration laws and should not be allowed to stay in the United States, regardless of the quality of the attorney.

"They knowingly broke immigration laws," she said. "The consequence is deportation."

Immigration and Customs Enforcement spokeswoman Lori Haley said Jose Galvez had been ordered deported by a judge, and agents were simply carrying out that order.

"If he is arguing that he had an incompetent attorney, it doesn't change the fact that he was deported pursuant to a valid order of removal," Haley said.

Jose Galvez illegally crossed the border into the U.S. in 1979 and his wife and daughter came 10 years later. The couple then had three more children, including Maribel, 13, who has mental retardation, seizure disorder and scoliosis.

In 1998, Jose and Maria Galvez and their daughter Alma sought help from a notary.

"We wanted to be here legally, without hiding from anyone," Maria Galvez said.

But the notary gave them incorrect advice, saying they would all be eligible for green cards.

A judge ruled against the family in 2003, citing a domestic violence conviction on Jose Galvez's record. The Board of Immigration Appeals ruled against the couple as well. Tolchin said the original ruling and the board decision were incorrect, because the conviction was only a misdemeanor and shouldn't have prevented Galvez from becoming a legal resident.

In September, federal agents showed up at the family's Pomona house. They arrested and deported Jose Galvez and gave Maria five weeks to leave the country and find another caretaker for Maribel. They couldn't find Alma, who was with her husband and their baby at their own house in Upland.

The visit stunned Maria Galvez, who said Cruz told her their case was going "fine."

Maria Galvez said her husband has worked for nearly 20 years as a janitor at a grocery store, and his health insurance pays for Maribel's ongoing care.

Galvez said that if she and Alma are deported and take Maribel to Mexico, she will be ineligible for healthcare there. And if they leave her here, she will not be able to survive.

"There is going to be no one who takes care of her like I do," Maria Galvez said.

--

anna.gorman@latimes.com

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