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Homeland Security Wrecks a Home

After five years, two pregnancies, and thousands of dollars in expenses, the government still insists their marriage is a sham.



Nicole speaks to her husband, Wajahat, at night before she goes to sleep, when he is waking up in Lahore, Pakistan. Or they talk in the afternoon, when she is getting out of her organic chemistry class at Roosevelt University and he is getting ready for bed. She doesn't know when, or if, she'll see him again.

The couple met about a month after 9/11. She was studying biology at the University of Chicago, and he owned a fast-food restaurant called American Sub on 15th and Kostner.

He spotted her on the street on the north side one day and handed her his business card. To distract herself from a recent breakup, she gave him a call. At first she thought he was too quiet for her, but then, she says, "he started to open up and I thought he was really funny."

A Pakistani Muslim, Wajahat Ali (his real name) had come to the U.S. on a tourist visa in 1999. An African-American Christian, Nicole (a pseudonym, at her request) was born and raised on the northwest side of Chicago.

Some of Nicole's friends suspected the couple's religious and cultural differences would be too big to overcome, but she says those differences ended up mattering little. "Before we really got seriously involved, some things were made clear--I'm Christian, I eat pork, and I'm not converting to Islam."

The relationship worked. She could tell that Wajahat wanted to be with her. They saw each other every day. Sometimes he'd close the restaurant to take her bowling or to the movies. He enjoyed spending holidays with her family. He even accompanied her to church at times. They talked about getting married and having kids someday.

After five months they moved in together. "My father is against anything interracial, so he never really gave him a chance," says Nicole. But Wajahat won over her mother--which meant a lot because "my mom always has strong opinions about boyfriends and she's usually right."

"I thought he was a fine young man," her mother says. "He seemed like one of the sweetest people I've ever seen her meet."

In September 2002, almost a year after the couple started dating, the Department of Homeland Security launched a pilot program called the National Security Entry-Exit Registration System--a registry that required men from certain Middle Eastern countries, including Pakistan, to appear at a local immigration office for interviews and background checks. Attorney General John Ashcroft hailed the registry as a "vital line of defense in the war against terrorism."

At that point Wajahat had overstayed his six-month tourist visa--by more than two years--but he registered with the U.S. government as required. A few months later, he says, he received a letter summoning him to immigration court for removal proceedings.

Wajahat had some friends who'd overstayed their visas too, and they assured him the situation wasn't anything a lawyer couldn't sort out. Wajahat owned a business, and he had no criminal record. "I didn't think it was a big deal," Nicole says. "I thought he could apply for an extension."

Around this time, an engagement ring on display in a jewelry store window caught Nicole's eye. She pointed it out to Wajahat, prompting a discussion about marriage. "I was ready for him to give me a lot of excuses about why we had to wait," she recalls. But he didn't.

Nicole and Wajahat, both 23 at the time, got married on November 22, 2003. Although Wajahat's court date was only a couple of days away, Nicole says his immigration status wasn't a factor in the decision. They just didn't think the situation was that serious. "Never in a million years did I think he'd have to go back to Pakistan," Nicole says.

But the immigration judge ordered just that. Wajahat could get deported at the government's expense or leave the U.S. voluntarily--the choice was his. But if he chose the first option, he'd be barred from coming back to the U.S. for ten years. Either way, he had to leave by March 24.

Even then, the seriousness of their predicament didn't dawn on them. Spouses of U.S. citizens (if they're living abroad or if they entered the country legally) are entitled to legal permanent residency--a green card. To start the process, the citizen spouse files an I-130 form, also called a Petition for Alien Relative, with U.S. Citizenship and Immigration Services (USCIS). "We just thought we'd fill out the paperwork and that would be that," Nicole says.

The couple took a trip to Las Vegas in February for Wajahat's birthday. Soon after they returned to Chicago they found out Nicole was pregnant.

Citizens seeking legal status for a spouse must prove to the government that the marriage isn't a sham entered into for the immigration benefits. After the petition is filed with the USCIS, an adjudications officer interviews the couple and determines whether there's sufficient evidence to support the idea that they intend to build a life together.

In 1986, to deter people from entering into green-card marriages, Congress amended the Immigration and Nationality Act to make legal status for alien spouses conditional for two years. At the time, immigration authorities were primarily concerned with preserving the integrity of the immigration system.

Today, they're also concerned with national security. "The U.S. visa is one of the most coveted items in the world, and foreign nationals have acquired visas fraudulently to enter the United States with the intent to harm people," a special agent with the State Department said during a press conference in December 2004. "Marriage and visa fraud potentially threaten the national security of the United States."

After the immigration judge ordered Wajahat to leave the country, the couple hired immigration lawyer Justin Burton of Kriezelman Burton & Associates in Chicago. Burton says professional ethics forbid immigration lawyers from representing couples they suspect are faking their marriage, so when the Alis showed up at his office he asked them some basic questions about their relationship, including how, where, and when they met. "I remember them being very sincere," he says.

Though arrests are infrequent, U.S. citizens who participate in fraudulent marriages risk five years in prison, a $250,000 fine, or both. Nicole "struck me as a person with great integrity," says Burton. "She was educated and came from a good family. I didn't think she would throw it all away for a fraudulent marriage."

Burton tried, to no avail, to reopen the removal proceedings and then helped the couple file the necessary documents: an I-130 petition seeking legal status for Wajahat and an application for a K-3 visa, which allows an alien spouse to stay in the U.S. if an I-130 petition is pending.

Meanwhile, March 24 was quickly approaching. Wajahat prepared to leave the country and his wife. "I was feeling very bad, leaving her by herself," he says. "I was very upset."

But the couple still believed the separation was temporary, and that he'd be home in time for the baby's birth. Nicole's due date wasn't until October, and that was still seven months away. "We were actually naively believing that things would come together and he would be able to come home very soon," she says.

Wajahat left his restaurant in the care of a cousin and returned to Pakistan.

"We had quite a bit of debt," Nicole says. "Our rent was $1,100--there was no way I could afford that--plus we had just bought a new car."

She moved back in with her parents and took a job at a credit-card processing company. She had stopped taking classes at the University of Chicago the previous fall and she couldn't return to school until she paid off the tuition balance.

A month after Wajahat left, Nicole had a miscarriage. "After that I stopped working for a while," she says. "For a few months I really didn't do anything."

Wajahat did what he could to help from afar, she says. His brother in Japan wired her money, and "as long as the store was up and running I was able to get support from there." But American Sub soon went out of business.

In July Nicole started working in the financial services department of a telecommunications company. By the end of 2004 the couple had yet to receive any information about the petitions they'd filed. In March 2005 Nicole flew to Lahore.

In some ways Pakistan was unlike anything she'd seen--the streets were a free-for-all, jammed with cars, motorcycles, bicycles, and horses all seemingly abiding by their own rules--but in at least one way it reminded her of home. ("I was eating McDonald's, KFC, Pizza Hut, Subway," she points out.) She planned to stay for two weeks but ended up staying two months.

Wajahat lived in a middle-class neighborhood with his mother, sister, brother, and sister-in-law. He worked with his brother, who supported the family with earnings from real estate properties.

"They made me feel really welcome," she says of Wajahat's family. They set her up with a cell phone and a computer, and her mother-in-law even hired some workers to replace the hole in the bathroom floor with a toilet.

In April the couple went to the U.S. Embassy in Islamabad for an interview regarding Wajahat's application for a K-3 visa, which would let him live in the U.S. with Nicole while awaiting permanent residency. "They asked him if he ever committed any crimes and a whole lot of questions along that line," says Nicole. "They told us they needed fingerprints and it would take 45 days."

Nicole says she would have been content to stay longer in Pakistan, but she got pregnant again and her health rapidly declined. "They don't have a filtration system that's adequate," she says. "I was in bad shape. I dropped 40 pounds in a short period of time. I started having asthma attacks, and I don't have asthma." A doctor diagnosed her with an intestinal infection and a lung infection, ailments she attributes to "unsanitary conditions" and "overwhelming pollution."

Fearing another miscarriage, she returned to Chicago in early May. She says that when she stated the reason for her trip at O'Hare, customs officers took her aside and grilled her about her relationship with Wajahat. "They were making all these negative comments--'So you're OK with him having another wife?' And two officers were like, 'They don't marry black women--did he pay you to marry him?'"

A few days later she wound up in the emergency room. On top of the intestinal and lung infections, she had a kidney infection.

On June 6, 2005, Nicole went to the USCIS office at 101 W. Congress Parkway to be interviewed about her I-130 petition. She knew an adjudications officer there would decide whether she and Wajahat were faking their marriage.

Nicole didn't think it would be difficult to prove their marriage was real. They'd lived together for more than a year before getting married; they'd owned a car together; they shared a checking account and a health insurance policy. Wajahat had been well integrated into Nicole's life. Her parents and friends knew him. Her pastor had met him. And they were having a baby together.

Robert Blackwood, adjudications branch chief for USCIS, says Chicago's 30 or so adjudications officers interview about 14,000 married couples a year and suspect fraud in 12 to 14 percent of the cases. Indicators of fraud, he says, include a large difference in age between the spouses, a quick marriage, lack of evidence of cohabitation, and numerous previous marriages. One indicator alone doesn't kill an application, he says; it just causes the officer to "look a little closer." When couples appear at the interview together, officers can separate them and ask each the same questions--How many keys do you need to get into the house? Do you have a garage? What color is your bedroom? What time do you leave for work in the morning? How did you spend the last week?--to see if their answers match.

But because Wajahat was in Pakistan Nicole appeared at the interview alone, represented by Burton. She says she gave the officer a copy of their old lease, joint checking-account statements, a shared health insurance policy, her plane tickets to Pakistan, her passport with entry and exit stamps, and phone bills showing that the couple talked almost every day.

Nicole says that the officer didn't look at the documents and seemed hung up on one thing: that she was pregnant and her husband lived in Pakistan. "He said, 'I don't understand how that one happened,'" Nicole recalls. "He didn't ask me any questions about our relationship. He just went off about me being pregnant and him being overseas." Burton, too, remembers the officer implying that Nicole was carrying someone else's baby. He told the officer the passport and plane tickets in Nicole's file would prove she'd just returned from a two-month visit with her husband.

Officers who suspect fraud can delay making a decision and request more information. But the officer didn't request anything more from Nicole.

When couples have unconventional marriages or differences in race or religion, or significant differences in age, the officers tend to more closely scrutinize their relationships, according to Burton. "I think skepticism has to be built into the system," he says, "but it has to be a healthy skepticism, and not fall on the other side of the fence to blatant prejudice."

Wajahat was missing out on everything: hearing the baby's heartbeat, feeling the baby kick, glimpsing the baby's face on the ultrasound monitor. Nicole wanted him with her for those moments--but also for the ones that were difficult.

Overall, the pregnancy wasn't going well. Even after her infections cleared up, Nicole was in pain. She went back to the doctor and discovered she had a fibroid tumor "that was being aggravated by the pregnancy." Her doctor put her on bed rest.

Wajahat's absence began to take its toll--and not only on his wife. "My parents are up in age and they have numerous sicknesses," Nicole says. "And it wasn't really fair that they had to bear this burden when he was perfectly capable, not just of supporting me financially but being emotionally supportive and doing what needed to be done."

In August the embassy in Islamabad called Wajahat in for an appointment, and the couple hoped for good news. "We thought, OK, this is it, he's gonna come home." Wajahat made the five-hour drive, bringing with him medical records, ultrasound photos, and a note from Nicole's doctor saying she'd been off work since June 13 because of complications with her pregnancy and that because of her "restricted mobility" she needed assistance "with activities such as laundry, grocery shopping, and transportation."

But the embassy in Islamabad told him something it could have told him back in April. Since he'd overstayed his tourist's visa by more than a year, he wasn't eligible to be readmitted to the U.S. for ten years without special permission. He needed to apply for an unlawful-presence waiver--a waiver that can be granted only when applicants demonstrate that their absence causes "extreme hardship."

With the baby due in a little over three months, Nicole wrote the embassy asking it to expedite the waiver process. "We are both financially and emotionally drained," she wrote. "The cost to keep in communication every month is approximately $500 just on my end." She said that she had to disobey her doctor's orders in order to do simple domestic chores and that "a lot of the financial, emotional, and physical burden for the pregnancy has fallen on my parents. My mother is 65 and has recently been diagnosed with breast cancer and diabetes and my father is 70 and has high blood pressure and gout. This situation is putting too much pressure on them because 5/7 days of the week I am unable to get out of bed and I rely on them to assist me with everything."

Being unable to work was a "financial disaster," she says, and she doubted she'd be able to recover from it if her husband didn't come home. "It would be a shame and a disgrace if I had to rely on the government for assistance to take care of this child when she has a parent who is completely willing and able to fully accept responsibility for this child. . . . He needs to get home very soon so that he can start earning some money to purchase the things that the baby will need and cover us financially while I will be off from work. Besides this reason, he should be given the opportunity to be present at the birth of his first child."

According to Burton, USCIS has the final say on whether a waiver will be granted. In theory, the embassy in Islamabad would have communicated with USCIS, but there was only a "hope and a prayer" that that would happen, he says. It was something to try.

Nicole later called the embassy to check on the status of the waiver. She says she spoke to a manager and expressed concern that Wajahat would miss the birth. "She said, 'There are nice birthing facilities here--you could come here and give birth.'" To Nicole, on bed rest, the suggestion seemed preposterous.

Nicole gave birth to a girl on November 22, 2005--the couple's second anniversary. The baby ingested meconium during the delivery, which can be fatal, and her insulin level was low. For seven days she stayed in the ICU on antibiotics and oxygen.

The baby pulled through, and for the next three and a half months even seemed to thrive. Because Nicole had missed so much work during her pregnancy, she says, "my job was giving me grief and made me come back to work when she was a week and a half old." Her mother cared for the baby while she worked, but even with the help, Nicole was overextended. For the first time she began to resent Wajahat for being a phantom husband. "I wasn't really calling him," she says. "I was mostly frustrated with him. I didn't feel that he was carrying the same kind of burden. And I don't know what I wanted him to do or what I expected, but it was like, do something. You need to do something."

There was nothing, of course, that he could do.

On the afternoon of March 13, 2006, after debating whether to wake up the baby for a bath or let her sleep, Nicole picked up her daughter and noticed something was terribly wrong. "She wasn't breathing at all, and her lips had started to turn blue," she says. She called 911. "They were trying to tell me to do CPR on her, and it didn't work." By the time the baby got to the hospital she was dead, a victim of Sudden Infant Death Syndrome.

Nicole started having panic attacks. She stopped eating and talking and had trouble sleeping. "I'd be jerked out of sleep because I was used to her waking up or waking up to feed her." She checked herself into a psychiatric hospital, which put her on a suicide watch and fed her a four-drug cocktail that made her feel drowsy all the time. Her parents had to plan the baby's funeral.

Burton told Wajahat to go to the embassy in Islamabad and ask to be paroled into the U.S. "There's a mechanism under immigration law that provides for humanitarian parole for situations like this," he says. The parole allows people who are otherwise prohibited from legal entry into the U.S. to be admitted under special circumstances.

Wajahat called the embassy and explained the situation. He says he was instructed to go to the consulate in Lahore, pay a $100 visa fee, and then pick up the visa at the embassy in Islamabad. Wajahat says he paid the fee and made the five-hour drive, but when he got to the embassy the state department denied him a visa--even though he had with him his daughter's death certificate and a letter from the Wallace Funeral Home on Division Street with the date and time of her funeral. Burton says he doesn't know if it was "callousness or a misunderstanding" on the part of the embassy in Islamabad, but either way he's appalled that it processed Wajahat's request as an application for a tourist visa. "They should have realized he was asking for a parole to attend a funeral," he says.

Wajahat felt helpless. He remembers listening to his wife cry on the phone, asking when he'd be there. "I told her I'd try," he says.

"We all were devastated that they wouldn't let him come back," says Nicole's mother. "We just couldn't believe it. How could anybody be so cruel not to let the father come home for his only daughter's funeral?"

In May 2006, eight months after Wajahat applied for the unlawful-presence waiver, Nicole learned that it had been denied. The letter explaining the decision contained factual errors, she says. It wrongly stated that she'd entered into a marriage with Wajahat "well after he had been ordered removed from the United States." And although less than two months earlier, Wajahat had brought in his daughter's death certificate and a letter from the funeral home, the letter of denial claimed that Nicole had stated she was pregnant at the time of the application and yet "no further information has been included . . . indicating the resolution of the situation."

The letter also contained an allegation that Wajahat had lied to immigration authorities. It said he'd indicated on one of the forms he'd filed that he'd never had any immigration problems. This "willful misrepresentation" of his immigration history, the letter said, rendered him "inadmissible for life."

"That's ridiculous," says Burton. The form he'd supposedly failed to admit his immigration problems on is a form filled out only by people who have immigration problems. "It was clearly a mistake," Burton says.

The denial also made passing reference to another piece of surprising news: Nicole's I-130 petition had been denied too. She had failed to persuade the government that her marriage was real.

USCIS, it turned out, had denied her petition nine months earlier, on August 7, but neither Burton nor the couple had received notice. The time to appeal the decision--within 30 days--had long since passed. Burton still doesn't know why the officer denied the petition, but if it was because he had doubts about paternity, he says, the officer could have requested DNA testing.

USCIS spokesperson Marilu Cabrera declined to comment on the case. "I can't discuss it," she said. "I wish I could."

Burton filed an appeal with the Board of Immigration Appeals, arguing that the 30-day countdown shouldn't have begun until Nicole was actually informed of the denial. Nicole wrote an affidavit saying that after her daughter's death she'd been diagnosed with "major depressive disorder and panic anxiety disorder," that she'd never received the denial of the visa petition, and she loved her husband. She added, "This whole process has been devastating."

Though the appeal was sent to the BIA, a denial came back from USCIS, informing the couple that Nicole would have to start all over again, filing another petition seeking legal status for Wajahat--the process she'd started three years earlier. Burton is challenging USCIS's authority to deny the appeal, claiming the decision belongs to the BIA, a separate government agency. In the meantime, he has filed another I-130 petition for the couple.

Nicole says she understands that some gatekeeping is necessary to "ensure the safety and security of everyone in the United States," but she believes immigration authorities "make it a practice to target people of certain races and religions."

She has considered moving to Pakistan and even looked into schools there, but has decided against it. "I don't think I would have the same opportunities to pursue my educational goals," she says. "And I don't want to go there and be a burden on [Wajahat's] family. People who work there make like 6,000 rupees a month, and they work hard for it. That's equivalent to like $100 a month. How would I be able to fulfill my obligations? My student loans are like $450 a month."

Her absence would be rough on her parents, too. She takes her father to dialysis three times a week. "I have some things locked in here I wouldn't be able to walk away from." She has enrolled in a master's degree program in public health and business administration that starts in the fall at Saint Xavier University. She plans to go to medical school after that.

After more than three years of marriage, two pregnancies, and many thousands of dollars in phone bills, Nicole wonders what else the government needs to decide that the marriage is real. "I think that's sufficient enough proof that we're not kidding around," she says.

But Burton has told the couple there's no guarantee they'll get a different result this time.

The couple plans to wait and see what happens with the new petition, but Nicole realizes it may be their last hope--that if it fails, the marriage may fail too. And if that happens, she says, it wouldn't be because it wasn't real. It would be because the U.S. government destroyed it.

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