Fatiha Elgharib entered the United States legally 13 years ago — but it may take the highest court in the land for her to remain here legally with her husband and four children.
The Sixth Circuit Court of Appeals recently denied her petition for the simple right to take her case to federal court. Her attorney, George Katchmer of Yellow Springs, said the federal 2005 Real ID Act has severely limited illegal immigrants’ access to federal courts: “What they are attempting to do with the Real ID Act is to strip every due process right from illegal immigrants. It translates as, ‘if you are an alien — screw you. You have no rights.’Katchmer would love to argue Elgharib’s case before the U.S. Supreme Court if enough money can be raised for the costly legal process. “I would kill to do it,” Katchmer said. “I think that we have a novel argument and I think it would pique the interest of the justices. My argument is aimed more at the right-wing justices, ironically, than the liberal ones.”
The Dayton Daily News has followed the Englewood mother’s struggle against deportation for the past two years — a story made all the more poignant by the fact that her youngest child, Sami, now 7, has Down syndrome.
An appeal on Sami’s behalf is still pending before the Sixth Circuit Court of Appeals, arguing, in essence, that as an American citizen with special needs he shouldn’t be separated from his primary caregiver.
Sami stopped talking and regressed in many other ways after his mother was imprisoned for five months in 2007. Immigration authorities seized Elgharib when she failed to appear for a court deportation hearing; the notice was sent to her old address. She was released on humanitarian grounds in December 2007, but that one missed court date set the deportation process inexorably in motion.
“The family thinks it’s a hopeful sign they haven’t ruled in Sami’s case,” said Denise Hamdi, Elgharib’s sister-in-law. Winning that case might mean that Elgharib can stay in the United States indefinitely. “We can’t wait for that decision because the clock is ticking on Fatiha’s deadline for filing an appeal to the Supreme Court,” Katchmer explained.
It’s another twist in a story that has been tortuously complicated, even by U.S. immigration standards.
Last year, Elgharib said goodbye to her children and surrendered to agents at the U.S. Immigration and Customs Enforcement office in downtown Columbus, fully expecting to board a plane to Morocco that same day. Her last-minute motion for a stay was granted, after intervention from U.S. Sen. George Voinovich, R-Ohio, and she was granted a one-year reprieve from deportation.
Elgharib and her husband, Youssef Hamdi, were overjoyed, and so were their children, Sara, 19; Tina, 16; and Wafaa, 10. They knew, however, that it was a short-lived reprieve, and the precious year has flown by.
Elgharib is so disheartened by the loss of her appeal that she simply shakes her head and says, “I don’t want to talk about that. It’s very heavy on my heart.”
Oldest daughter Sara, a student at Sinclair Community College, is concerned about the change in her mother. “Ever since she found out about losing the case, she has given up,” Sara said.
She understands what a blow it must have been after the ordeal of near-deportation. But if their mother has lost her fight, the Hamdi children have found theirs. They’re organizing a May 16 benefit at Englewood’s Centennial Park to raise funds for legal expenses and they have set up a website — www.helpthehamdis.webs.com — to promote their cause.
“You’re not supposed to give up — be confident!” Sara exhorted her mother.
“We want to keep this family together,” Denise Hamdi said. “They are a part of our community.”
The family is in a strange dual immigration status. Elgharib’s husband has lived here long enough he may eventually become eligible for citizenship. Older daughters Sara and Tina aren’t U.S. citizens even though they have been in the United States since childhood. Sami and Wafaa are citizens but could face the choice of returning to Morocco or being torn apart from their family.
The older girls are shocked and deeply hurt by the anti-immigrant rhetoric surrounding the stringent Arizona immigration law. “It’s like we’re not even human,” observed Tina, a junior at Miami Valley Career Technology Center. “We haven’t done anything wrong. We have the same right to be here as anyone else.”
She’s wrong about that, sadly, and that’s what the family’s attorney is trying to make right. “This is a very basic issue,” Katchmer observed. “If Congress can strip constitutional jurisdiction from the federal courts, then we aren’t Americans any more.”