The case of Kilkenny man Seamus Culleton, who is being held in a detention camp in Texas pending deportation from the United States, has highlighted the precarious situation facing many Irish citizens living in the US.
Culleton entered the US as a 90-day tourist in 2009 on a waiver programme and overstayed. He has a work permit and a plastering business in Boston, Massachusetts, and he has applied for a green card – for permanent residency – based on his marriage last April to US citizen Tiffany Smith.
However, the native of Glenmore, Co Kilkenny, is facing deportation after being picked up by Immigration and Customs Enforcement (Ice) officers in September in Massachusetts. He was transferred to a detention facility in El Paso, Texas.
Culleton’s profile is like that of thousands of Irish people who entered the US using visa waiver programmes and overstayed.
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The situation of such people, said New York attorney Brian O’Dwyer, was now “dire. It is hard to say anything except that. Dire.”
Has the law changed?
No, said Dublin-born Raymond McEntee, managing partner with McEntee Law, Chicago, which specialises in immigration law.
“In the past, if you had no criminal background but had overstayed and were now married you would be likely to be approved [for a green card],” he said.
Immigration officers were not using their powers of discrimination in the way they used to when dealing with people seeking to regularise their situation, said New York immigration attorney Paul O’Dwyer.
[ Irishman detained in Texas overstayed 90-day visitor’s visa issued in 2009 ]
In the past “they would never have enforced the law against [Culleton] in the way they are now doing”, he said.
Brian O’Dwyer said: “The administration has made a conscious decision to get rid of people who don’t have regular status.” It is proving “very effective”.
As so many Irish entered the US using the visa waiver programme and overstayed, they now found themselves in a worse situation legally than people who were trafficked into the US or slipped across the border, he said.
Why is that?
Culleton made a habeas corpus application in El Paso, but in a ruling on January 23rd the judge denied the application, pointing out that the visa waiver programme involved beneficiaries waiving “any right ... to contest, other than on the basis of an application for asylum, any action for removal of rights”.
This waiver of rights was “the linchpin of the programme”, she said. There was no right to contest any alleged breach of proper procedure, even in cases where a person was married to a US citizen and sought to regularise their situation, the judge said.
Brian O’Dwyer, a long-time advocate for the rights of Irish immigrants and a founder of the Emerald Isle Immigration Centre in New York, said: “We fought very hard years ago for all these exceptions for Ireland, visa waivers.”
“No one really anticipated the downside, that you give up your rights. I mean, it is incredible to think that if somebody sneaks into the country, over the border, gets trafficked, they have more rights than somebody who just comes as a visitor and overstays,” he said.
So what are attorneys telling clients?
“Number one, I explain to them, so they know very thoroughly, what the risks are, and what may happen,” Paul O’Dwyer said.
He advised clients to “put plans in place, if things go wrong, so you are not caught unawares ... If you are a visa overstay and you go for interview [to regularise your situation] you may be detained. Or you may not. There is a lot of not knowing”.
Discussions with clients needed to be very frank, he said. “When you are detained, you are very likely to be taken to a detention facility far away from your home, and your family, with limited opportunity to see people.”
“We would say you should speak to an immigration attorney,” said Dublin-born Raymond McEntee, managing partner of McEntee Law Group, of Chicago, Illinois, which specialises in immigration law.
“See if there is a way you can move towards a more protected status, whether it be permanent residence or, if a green card holder, towards citizenship.”
While doing so, clients should identify issues that may not have been considered a problem in the past, but might now, he said, and see if they can rectify them.
His firm had clients who had asked them to go on a retainer in case anything should happen, he said.
It can be important for a person to get a lawyer into court in Illinois to contest their detention before they are moved to Texas.
“The Fifth Circuit [which includes Texas] has started to deny habeas corpus applications,” McEntee said.
What about people considering going to the US who may have overstayed visas before or are returning from trips abroad?
The US embassy in Dublin “can be very tough on people who have overstayed or if they have a minor criminal issue”, said US immigration attorney Janice Flynn, who is based in the UK.
“What we are finding now is that some counsellor officers are just afraid about issuing visas to people [who have what used to be considered minor issues] in case it comes back on that particular officer,” she said.
Green card holders are also coming to her seeking advice.
“Maybe they have come back to Ireland for a bit. They are worried that the custom and border control officers are going to take their green card from them” when they sought to re-enter the US, she said.
What is the atmosphere like among clients?
“People are anxious,” McEntee said.
People are terrified, Paul O’Dwyer said. “I mean, that is the whole point of it. That is the reason why it is happening.”
Some people are self-deporting because they don’t want to end up in a detention facility, Brian O’Dwyer said.
“Many Irish people, who have been here for many years, don’t want to go into this type of detention, which is worse than prison. Their assumption is they wouldn’t survive 30 days in detention,” he said.
A lot of his Irish friends, he said, who voted for Donald Trump, thought he would never go after the Irish.
But, he said he believed, deporting Irish people allowed the US administration to say: “How can you tell us we are racist? We are deporting the Irish.”
