by Sheila Howard, JD Staff Member
Edited by Karyse Philips, JD Editor
Justice:Denied magazine, Issue 26, page 6
Alex Popov is one of many immigrants being detained by DHS for administrative reasons. He has not been convicted of a crime and is in this country legally. Yet he has been wrongly classified as a criminal detainee and is being held in a private prison in San Diego that has a contract with the DHS to warehouse immigrants pending deportation proceedings. That prison has been “home” to Alex Popov for over 1-1/2 years.
Alex and his wife, Ina, came to the United States in 1992 on an “H-B-2 visitor visa.” In 1993, Alex applied for a “re-adjustment of status” which was accepted and converted to an “L-1 business visa.” In 1994 Alex and his wife applied for and were granted an extension of his L-1 business visa until April 1996, and at the same time filed for permanent residence (I-140), which was also approved. Since his application for permanent residence had been approved, in 1995 Popov filed for Adjustment of Status (I-485) and had an interview related to his request. He had a second Adjustment of Status interview two years later, in 1997. While his form I-485 was pending Popov’s status remained “pending” until he was detained near San Diego in April of 2003.
On April 6, 2003 Popov was arrested and denied bond “pending removal proceedings.” Bond was denied Popov because he was deemed a flight risk, even though he has established ties in this country since immigrating here 11 years ago, he had a good job in the computer industry, he has lived in Reno Nevada for several years, and his two daughters are U.S. citizens and honor-roll students.
Although Popov legally entered the country in 1992 and received the necessary approvals to continue living here, the DHS said it was unable to locate his “A” file, which contains the critical paperwork that would establish he was not “out of status.” He is not the only member of the Popov family with a DHS problem: The agency claims it has been unable to locate his wife Ina’s file as well. However she has not been arrested and has thus been able to care for the couple’s two children.
In June 2003, Popov was found to be “deportable.” He appealed the ruling, but in September 2003 a “Notice of Intent to Revoke” was issued by the DHS. His attorney failed to file rebuttal by the 30-day deadline, and a decision to revoke the I-140 (permanent residency) petition was granted. This is same I-140 “pending” when Popov was found deportable on the ground that he could not prove was pending, because his “A” file was couldn’t be located by DHS. However, the DHS’ September 2003 filing provides proof positive that his application for permanent residency was “pending”: Since only a “pending” application can be revoked. That means Alex Popov and his family were not “out of status” at the time of his arrest. It is also proof that the June 2003 hearing finding him deportable should now be admitted to be in error and he should be classified as not deportable.
However, that is not how the system works. The procedure is Popov must file a motion with the DHS to reopen his case, then file a petition for review of the DHS’s June 2003 ruling he was “deportable.” If the DHS’ administrative proceedings are denied, Popov would then have the opportunity to appeal the federal courts. However as these processes take place, he is not eligible for a bond hearing because he has been found “deportable.” Since that ruling is very one he is contesting, he is caught in a Catch-22 preventing him from being bailed out.
Thus Alex Popov is caught in a Kafkaesque DHS bureaucratic nightmare. He is currently filing a motion to reopen his case on grounds of ineffective assistance of counsel. In spite of his circumstances, Alex has been able to prove his permanent residency status was pending at the time he was detained in April 2003. But the DHS fights dirty. With proof that he was not legally detained, the DHS is now trying to justify it actions by making new accusations unrelated to the agencies June 2003 finding he was “deportable.” The DHS is doing this by the tactic of trying to show the initial visa issued Popov in 1992 should not have been granted. They are arguing “fraud” based on an unnamed investigator who at an undisclosed date and unknown time called a number listed on Popov’s visa application of 12 years ago - and no person at that number recalls him or the company for which he worked. Another unnamed investigator arrived at the address he listed in Russia and inquired about Popov and the company, and nobody could recall him by name. A lot of turmoil has gone on in Russia during the past 12 years - heck, the “collapse” of communism was so new when Popov left that the KGB had not yet disbanded. Nonetheless, the DHS considers it reasonable that an apartment in a country half-way around the world should keep records of a tenant who lived there 12 years ago. The absurdity of the DHS’ position is there is no such requirement for an apartment manager in this country.
However the DHS’ claim of fraud as a way to avoid a reversal of Popov’s “deportable” order is now a routine tactic. Detaining immigrants for administrative reasons, that include inadequate documents and accusations of possible fraud, comprise over 30% of the total number of denials.
During Popov’s detainment, his wife and children have had a very had time keeping a roof over their heads, and they have lost many of their personal effects. Yet under those trying circumstances Popov is expected to provide all past documentation of addresses, employment, etc., in order to counteract the DHS’s allegations on appeal. He will not be able to apply for reinstatement of his visa unless he wins his case, and he remains guilty until he proves himself innocent.
Alex Popov, if granted a “cancellation of removal,” will have to re-file an adjustment of status and show that he can support his family at 125% of poverty level. He can be expected to remain in prison for at least another year while he jumps through the DHS’ procedural hoops. Many detainees remain imprisoned for years while they exhaust their appeals. Many of those people are in a situation similar to Popov: They committed no crime and became ensnared through no fault of their own, in the DHS’ bureaucracy.
The DHS also erred in disregarding the extreme hardship that deportation would create for his family. That error was caused in part by his first attorney stating that Popov’s wife and daughters would remain in the United States if he were deported: So no consideration was given for him to remain in this country based on the extreme hardship exception. Popov’s wife Ina is not a citizen and her case is currently in “pending” status. Her DHS file remains missing, and what happens with her depends on the outcome of Alex’s case. Although the couple’s children are both U.S. citizens, they will not have the right to remain in this country until they reach 18 years of age.
The hardship that would be caused if the family were deported are many and severe. Though Russia has changed over the years, anti-American sentiment is still a reality. The Popov’s two school age daughters have been raised since birth as Americans. They neither speak Russian nor know anything about Russian culture. Contained within the many pages of Alex’s motion is a statement from a professional who specializes in early childhood development. He wrote in reference to Alex’s daughters: “Developmentally, these children are at a very vulnerable emotional, psychological and educational ages. They are also much too young to effectively deal on a cognitive basis with such a radical and abrupt change. Such a move would likely cause them to experience developmental regression, with serious depression and anxiety. Due to language and social barriers, they can also be expected to suffer significantly in their education, currently reported as well above average.”
Another issue for the family is that in order to move within Russia an annually renewed “malapropism” is required, It is also used for employment purposes. After the Popov’s left Russia their residency documents expired. Thus it is likely they would be forced to live elsewhere in Russia for at least several years waiting for permission to live in Moscow.
Employment and Popov’s ability to support a family of four in the “new” Russia could be a serious problem. Alex’s degree is in nuclear physics, although he also has an interest in computer technology. Nuclear physics was what was chosen for him when attending school in what was then the Soviet Union. The “new” Russia is impoverished compared to when Popov and his wife left, and so might their Americanized family be if forced to move there.
Hundreds of thousands, if not millions of people, are to one degree or another in the same situation as the Popov family. Immigration does not recognize each spouse as an individual, but groups the family together as one case. Many of these families remain in limbo, ineligible for work permits while their spouse’s cases are “pending,” ineligible for benefits because they are not citizens, failing to report crimes against them to police for fear of being taken into custody, and often working for substandard wages for the same reason. States are systematically removing their ability to send their children to public school, and now we are proposing to track them through their use of library services. We require welfare services to report applications at mandatory 45 day increments. The vast majority of these children are legal US citizens and yet the U.S. government is setting them up to be impoverished as children and disillusioned as adults.
Popov has a proven track record of being employable in this country, and he has an education level well above the majority of detainees. He has demonstrated his good moral character as represented by statements from friends and actions throughout his life. Popov is now representing himself pro se. He and his family have been unable to raise funds for an attorney, so he is making the best of his situation and educating himself in Immigration Law.
Alex Popov is an unconvicted innocent person condemned to serve what is in effect an indeterminate prison term because he insists on his right to be heard. How many years must his family be split apart in a limbo state?
The DHS’ treatment of people such as the Popov family is intolerable for a country that professes to be the land of the free. The broad bureaucratic powers of the DHS are being routinely misused without adequate oversight by federal judges. One can only hope that in the Popov’s case the right thing is ultimately done by the federal government - and that the family is allowed to be reunited and remain in this country.
You may contact Alex at his current residence by mail:
Alexander Popov A #96194-809
San Diego Correctional Facility (CCA)
PO Box 439049
San Diego, CA 92143
Outside Contact: Sheila Howard at: SheilaCE@aol.com