By Michael E. Miller
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Venezuelan citizen Guillermo Pena works as a district manager for the Falk Corporation, one of several subsidiaries of the multibillion-dollar manufacturer Sundstrand. Milwaukee-based Falk builds and sells industrial power-transmission equipment. Its Website advertises the company's products for use in coal mines, paper mills, chemical plants, and oil refineries worldwide. On a link to the site titled "Global Sales Offices," the multinational lists four Latin American locations: Sao Paulo, Santiago, Mexico City, and Miami. That last inclusion on the list would no doubt warm the hearts of local boosters who promote Miami-Dade County as a gateway to Latin America.
Pena formerly managed sales for Falk in Venezuela, but when the company closed its Caracas office in 1996, the 39-year-old supervisor was transferred to head the Miami branch -- a routine personnel move in the global economy. Or so one would think.
Pena landed at Miami International Airport on June 15, 1997. What happened there was gleaned from court records of a lawsuit filed by Falk on July 18, 1997, in U.S. District Court in Miami against immigration officials and Attorney General Janet Reno. (Neither Pena nor federal authorities would comment on the case.)
The dispassionate language of the court documents gives little indication of Pena's frame of mind when he landed at MIA. But it is unlikely he expected a harrowing twenty-hour confinement in a detention center there. And he could hardly have anticipated being ordered back on a plane to Caracas, banned from the United States for five years.
Pena's troubles with Miami airport immigration inspectors had begun the year before. On a business trip to Miami in early February 1996, an immigration officer, for unknown reasons, questioned the legitimacy of his visa. Pena was traveling on an L-1A visa, given to managers or executives of multinational corporations. The visa allows a transferred employee entry to the United States for a stay of up to seven years. In addition, the visa holder is permitted to bypass a normal prerequisite -- maintenance of a foreign residence, which serves as a deterrent against overstays.
The officer canceled Pena's visa and gave him the opportunity to return to Venezuela to resolve the problem rather than appealing the decision before an immigration judge. A month later the State Department, through the U.S. Consulate in Venezuela, issued Pena a new L-1A visa, which he used to travel to Miami on several occasions. But on July 26, 1996, again at MIA, an immigration officer allowed him to enter the United States but ordered him to meet with INS officials in order to clarify his immigration status, which he did.
For almost a year afterward, Pena entered and left the on several occasions without incident. Indeed his wife, Mariela, their five-year-old daughter Diana, and ten-year-old son Enrique were already living in Miami when Pena's flight from Caracas landed at the airport in the middle of June 1997.
This time when Pena presented his passport, the INS accused him of planning to live permanently in the United States because he no longer had a residence or a job in Venezuela, even though neither was a requirement of his visa. In addition, he was accused of hiding the fact that his first visa had been canceled at the time he applied for his second one.
And this time, the same INS office at MIA that had earlier questioned Pena's visa had substantially more power. After twenty hours of detention -- during which time he was allowed no phone calls -- Pena was placed on a flight to Venezuela and barred from re-entry to the United States for five years.
Unlike more than 1000 other foreigners who have also been summarily removed from MIA in a recent eight-month period, Pena had the backing of a huge multinational corporation. The Falk Corporation hired some of the best and most expensive immigration lawyers in Miami to rescue its valued employee. Two months later, after the firm had spent tens of thousands of dollars in legal fees, the government settled with Falk, lifting the ban and restoring Pena's original visa. Under the terms of the settlement, the INS did not reimburse Falk for legal fees, admitted no wrongdoing, and held fast to its contention that the court had no jurisdiction over immigration procedures. Still, Falk's lawyers were satisfied. "We are pleased with the settlement, and we hope Congress will revisit this issue," says attorney Elliot Scherker, who, along with Oscar Levin, represented the company in the case.
In order to understand how a top manager in a multinational corporation could be detained for twenty hours and then banned from the United States, one must return to 1996, when a Republican-dominated Congress passed sweeping legislation in an attempt to stem illegal immigration. The new law rode a wave of anti-immigrant fervor that stood in stark contrast to an increasingly global economy. The legislation, called the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), went into effect April 1, 1997.
Among the new IIRAIRA provisions are increases in the INS budget, more personnel, and bold new authority for the agency's officers. Previously all noncitizens the INS ruled ineligible for U.S. entry were allowed to plead their cases before an independent immigration judge before removal. The hearing had many of the trappings of a trial: access to a lawyer, and to an interpreter if necessary; the ability to question witnesses; and the right to appeal, either to an immigration board or a federal court.