Living Under DOMA: Returning to the U.S.

April 30, 2013

Katherine Thompson continues her story of fleeing the U.S. with her non-U.S. citizen girlfriend Jodi so that Jodi’s immigration status can remain legal. In the last segment, Katherine and Jodi arrived in Canada but didn’t surrender Jodi’s I-94, which turned out to be a mistake.

For most Americans, an expiring visa means that we’ll be getting a new credit card in the mail soon. But in U.S. immigration terms, a visa “allows a foreign citizen coming from abroad, to travel to the United States port-of entry and request permission to enter the U.S.”  [Note: if, like me, you are a lover of proper punctuation, then during your interaction with your immigration officer you should nonetheless restrain yourself from informing the U.S. State Department of its improper comma and hyphen use.] The State Department goes on to caution, “Applicants should be aware that a visa does not guarantee entry into the United States.”

So, for $160 or more, you get the privilege of knowing that upon arrival in America you will be able to “request permission to enter,” but no guarantee that you will actually be granted it. To execute this fun game of roulette, you must also buy an international flight, travel insurance (foreign citizens are terrified of needing medical attention while in the U.S. – due to potential bankruptcy, not the skill of our medical professionals), book accommodation and whatever else you might want to do with your trip. Which you may or may not be able to enter the country to actually do. Sounds like a great holiday to me.

Which leads me, before continuing my saga, to some visa basics that I didn’t know before this fateful week in October:

  • Having a visa does not mean the U.S. immigration officers have to let you in.
  • A visa is often defined, in part, by a length of time—you might hear the phrase “one year work visa” or “five year tourist visa.” This doesn’t mean that you can stay for one or five years. It means the visa is valid for you to “request permission to enter” for as many times as you want during that period. But upon each entry, you will be given an amount of time you can stay, which is usually 3-6 months, and is always up to the discretion of the immigration officer (more on this later).
  • To overstay your visa is a violation. Once you leave the country again after doing so, they will probably find out that you did it—and this can mean being barred from re-entering the U.S. for up to ten years. (This is why many “illegal immigrants” are said to have come to the U.S. legally—they simply overstay a legal visa—and also why most are afraid to return to their home countries: they will most likely be barred from returning to the U.S. once they leave, but if they can avoid getting picked up for anything else (such as drunk driving or domestic violence), they can remain in the U.S. indefinitely.
  • Visas define what you are able to do while in the country—work, study, travel, etc. To work while on a tourist visa is a violation. To enroll in school while on a different kind of visa is a violation, etc.)
  • The immigration officer’s goal is to ascertain that you intend to return to your home country. Any evidence to the contrary can be grounds to not admit you. So, for example, “but you have to let me back in—I’m in love with an American” is not a good argument to try. Money talks—if you have money in the bank to support yourself, and a return ticket home, you are less likely to arouse suspicion.
  • If you want to extend your visa or change your status—i.e. from a visitor’s visa to a work visa—you have to either petition the USCIS, for a fee of $300 and with a window of several months before your visa end-date, OR leave the country and, upon re-entry, activate your new visa, which you must have had the foresight to apply for when you were back in your home country.

Jodi has been working at the summer camp where we met for several years, and over those years has spent a lot of time in the U.S. So she knew to come armed with a second visa in her passport to complement her J-1 (her camp work visa): the B-1/B-2, for temporary “business, tourism, pleasure, or visiting.” Unlike hapless Visa Waiver Program visitors who decide they want to stay longer than three months, she should theoretically be able to leave the U.S. on her J-1 visa and re-enter on her B-1/B-2 visa.

But there’s one problem. Well, there are many problems; a broken, discriminatory immigration system among them. But the main one I’m thinking of here is the “discretion of the immigration officer” part. When they hold your passport (and, in recent years, take your e-fingerprints and administer e-retina scans) in these liminal spaces of the borders between countries, they hold your fate in their hands. The power differential between you is great. I can see why someone thought to phrase the guidelines that way—you want to give people who have significant responsibility for our national security the ability to exercise professional discretion in the execution of their duties. If they have some kind of gnawing feeling that something is not right with a person or situation, you want them to have the opportunity to pursue that further. Perhaps this has prevented terrorism in the past, or kept kidnapped children from being taken across international borders; it’s hard for a layperson to know.  But individual discretion leaves a lot of room for profiling and personal prejudice to impact an officer’s decisions. It can also make you party to this yourself, in trying to ingratiate yourself with the officer who has such power.

On one occasion, years after Niagara Falls, Jodi and I were entering the U.S. from Tijuana on another time-extending mission. The officer was very jovial, excited to meet an Australian (the Mexican borders see different clientele than the Canadian ones), and to reminisce with her about his days in the Navy visiting Australia, and to wonder what had changed since the 1970s. We were laughing, agreeing on the pleasant aspect of the Swan River as it flows past Perth. “And I just remember,” said the officer, “seeing drunken Abos everywhere; they were all over the place; always getting into trouble. Sniffing glue. Hilarious. They still there?” And in an instant, we tried to figure out how to respond to a racist statement about Australian Aboriginal people, while not losing the camaraderie we had built with our jolly immigration officer, who was himself dark-skinned, presumably Mexican-American, with a Spanish last name. Now-plastic smiles fixed to our faces, Jodi said something like, “Some things never change!” and he stamped her card for 6 more months. We felt the extreme kind of crappiness you can only feel when compromising one aspect of yourself in the advancement of another. At that moment, more than the injustice of an immigration system in which a citizen can’t sponsor her partner, we felt the injustice of one that makes you tolerate—and participate in—offensive behavior because you are at the mercy of one person’s “discretion.”

But back to Niagara Falls, which I keep aiming at and missing because, like a spider’s web, the immigration system and my experience in it is so sticky that when I touch one part, I realize it is connected to so many others, and I can’t move without getting stuck in a dozen other places. We have approached the armored tollbooth. We have handed over our passports. The officer, a young man with no harshness about him, asks the purpose of our visit to Canada; how long we were there. Even here, we need to be careful. Although the true purpose of our visit was the hope of extending Jodi’s visa, it could look conniving or like trying to play the system to say that. So we connive and play the system and say we were visiting Niagara Falls. We were sightseeing, just for the day. Wanted the view from the Canadian side. He seems a little perplexed by us; notes that one of us is American, one Australian. We agree. “So what are you doing in America?” he asks Jodi. “I’ve been working at summer camp, on a J-1. I was hoping to continue sightseeing and visiting friends for a while longer; maybe stay through Christmas.”  He declares us a matter for the office, a drab, Cold War-era building off to the right. To go through the proper screening of visas, changing of forms, admonishments of not surrendering I-94s, would hold up the line of easier cases (families full of American passports, kids with hair damp from the Maid of the Mist) mounting behind us. To be sent into the building is not inherently a harbinger of doom, but it is a shame that we don’t get processed by this amiable young man, whose “discretion” seems like it may have tended toward generosity.

In the building is a long counter staffed by several older men. Ours has gray hair, thick glasses, and a stern, military countenance. He asks us why we’re here, which feels like when you answer the phone and the person on the other end says “Hello?” and waits for you to talk. We explain that I’m American, she’s Australian, she has a B-1/B-2 visa. “Fill out the green form and come back,” he says gruffly, indicating a display of forms on the side wall, some white (I-94s), some green (Visa Waiver cards). Timid and polite, Jodi says that she thinks she needs the white card, because she’s not using Visa Waiver. In our memory, this is what pushes him over the edge from gruffness to meanness: being argued with at the outset of his interaction with us. “What did you say you’re doing?” he asks, and she explains again that she was on a J-1, hopes to enter on her B-1/B-2 for more sightseeing. (“Sightseeing” is the border-crosser’s favorite word; in an environment where anything you say can and will be used against you, it is innocuous and all-encompassing.) He acts confused, I think to make her feel like she has been confusing, and sneers that she should get the white card then, if she thinks she knows best.

Hands shaking, she fills out the card. She takes it back to him. He looks at it, and flips through her passport, and is displeased with at least two things: 1) the presence of her old I-94, still there despite her having left the country, and 2) the evidence of her having left and entered the U.S. quite a few times over the last several years. I say “at least” two because I don’t rule out that he is also displeased with various aspects of Jodi’s appearance and situation, such as her piercings, skater-punk vibe complete with Felix the Cat T-shirt, and unmarried-femaleness. What proceeds is a half-hour interrogation, often doubling back in circles, designed to catch her in a lie or at least leave her feeling like a spinning top or a rattle owned by an aggressive child. Why are you in the U.S.? Why did you go to Canada? How long were you there? Why do you still have your I-94? How do I know when you left if you still have it? You could say anything; how do I know you’re telling the truth? Why do you need more time for your visit? When is your flight home? Where are you staying? How much money do you have? How are you supporting yourself? What is your profession in Australia? Do you have a job there? Looks like you’ve spent a lot of time in the U.S. Are you working? If I give you more time now, how do I know you’re not going to do this again next time your visa runs out? Where are you staying? Do you have family in the U.S.? Let me see your bank statements. Where is this summer camp? Do you have a letter from them? When is your flight home? How were you planning to catch a flight home in January if your visa ran out next week?

Poor Jodi, armed with nothing but the truth and the fact that she has tried so hard to do everything right; yes, she has done this several times before and spent a lot of time in the U.S. these last few years but she has never overstayed a visa, never worked illegally, never committed a crime; has no recourse as to the authenticity of her statements other than to insist that they are true. How do I know you only spent one day in Canada? Because I’m telling you I did. How do I know you won’t do this again? You don’t, because what I’m doing is perfectly legal and you have no right to ask me not to do it. But. He does have the right to not let her in at all, so she looks for the right answer and begs just to get a little more time so she doesn’t have to change her flight. And finally, he says “Five weeks.” She begs one more time for him to please consider giving her ten weeks, so she doesn’t have to change her flight. He says he thinks she is trying to stay in America permanently. She can have these few weeks to make her arrangements, change her flight, which by his estimation she shouldn’t have made for a date outside her current visa anyway, but this is him being nice because he doesn’t particularly want to let her back in at all. “I have an invitation from friends to spend Christmas in the U.S.,” she tries halfheartedly. “I guess you’ll have to decline, then,” he says.

We finally escape. I’m driving because Jodi is trembling too violently. We try to convince ourselves that it could have been worse—she could have been denied entry altogether, or kept in detention if they could find a reason. But it also could have been better—almost always, if they don’t suspect you of something, you get a blanket 3 or 6 months—the most-used stamps are pre-set to those dates. In the years since, we’ve had many stressful border crossings together, and Jodi has had even more by herself, but none as harrowing as this, and each time she has been given at least 3 months. But it’s my first time, and I have a sour feeling I have never felt before, but which will solidify inside me into a kind of sustained sadness over the years to come, like hard water stains to a tub: the feeling of being unwelcome in my country, and the profound injustice of it. I have thought of this immigration officer many times over the years, attempting an empathy he didn’t have for us. Maybe he’d just had a really bad day, at home or at work. Maybe we reminded him of his daughter who was giving him the silent treatment, or had run away from home, or had taken up with some lowlife punk guy (or girl!) with piercings. We have no idea about his burden in this world, just as he had no idea about ours.

We drive the night highway back into Buffalo. The motels, ablaze in neon splendor, are more alluring than ever after a bad night’s sleep in a rented car, a day spent in the sun, and the emotional exhaustion of the evening’s interrogation. On an impulse, I pull into a gravelly parking lot and inquire after a room. The innkeeper is friendly, but it’s both her and her husband’s birthday on the same day—today—and they’re celebrating by watching a movie, which we have interrupted. Regular rooms cost $50, or the honeymoon suite costs $80.  What exactly makes it a honeymoon suite? I ask. A heart-shaped Jacuzzi, champagne for two, and mirrors on the ceiling, I learn. When I tell her we’ll take it, she appraises us with arched but not unfriendly eyebrows, and with truly American laissez-faireness, takes my money and hands me the key.