In a sudden move to end a five-year legal stalemate in its favor, the
Immigration and Naturalization Service has ordered the prompt deportation of a German national who has lived in the United States for nearly 20 years, has no criminal record and is married to an American citizen.
Wolfgang von Eitzen, 55, a resident of Billings, Mont., since 1982, received notice April 13 that he must report to an INS official in Helena, Mont., this Monday at 11 a.m., with no more than 40 pounds of baggage, ready for deportation.
“Failure to comply with this directive will result in Mr. von Eitzen being reported to the Federal Bureau of Investigation as a ‘Fugitive from Justice’, and entered into the National Crime Information Center as a ‘Wanted Person,’” said INS district director Harry Thomas in a four-page letter to Brandon Marinoff, a Denver-based immigration attorney who represents von Eitzen.
“A Warrant for his deportation has been issued and will be enforced to assure his repatriation to Germany,” Thomas warned.
The “bag-and-baggage” notice, as these forms are called, came as a shock to von Eitzen and his wife Josephine. They had good reason to hope that their ongoing battle with the INS was nearing an end and that Wolfgang would be granted permanent residency in this country, where he could eventually become a citizen.
Wolfgang and Josephine von Eitzen
In February, in a stunning reversal of its previous position, the INS bestowed an official blessing on the marriage by approving the I-130 petition, which Mrs. von Eitzen had filed in April 1997. The I-130 process allows American citizens and lawful permanent residents to bring relatives and spouses from other countries to live permanently in the United States.
WorldNetDaily reported on the case last September. At that time, the biggest obstacle to von Eitzen being granted permanent resident status seemed to be the refusal of the INS to approve Mrs. von Eitzen’s marriage petition. That obstacle is now removed, yet residency status remains as elusive as ever.
Von Eitzen and Josephine, a widow, were married in December 1996, in his home in Billings by an old friend, a local judge. The account in WorldNetDaily, that the von Eitzens knew each other only a few months, is incorrect. In fact, because of shared political goals and interests, the couple had been in close communication by telephone, letters and through mutual friends for two years prior to their marriage, though they did not meet face to face until after von Eitzen was divorced from his former wife.
The INS has maintained from the outset that the marriage was one of convenience, a sham and a fraud, entered into solely to enable von Eitzen to obtain permanent residency and avoid deportation. But from the time the petition was filed until it was finally granted four years later, the INS never interviewed the von Eitzens to determine if this were the case, although the couple made themselves readily available and invited the INS to send officials to their home.
Yet despite having no knowledge of the von Eitzens’ relationship, director Harry Thomas summarily denied the petition in October 1998. Mrs. von Eitzen’s motion to reconsider was ignored for two years, the case stuck in a legal limbo.
The scenario changed in early February when Mrs. von Eitzen received an
official notice: “Your petition for Alien relief has been approved and
sent to the National Visa Center.” With the unexpected thumbs up from the INS regarding their marriage, the road looked clear for the von Eitzens to get on with their life together.
“I can’t tell you how happy I am,” said Mrs. von Eitzen, upon learning that her petition was finally approved. “We can laugh and joke together again, listen to music — we’re doing all the things we’ve done for so long. Wolf’s getting ready to work on the house again — you know it’s still not finished. There’s not been time.”
Her happiness was short-lived. Inexplicably, despite recognition that their marriage is bona fide, the INS remains determined to prevent the couple from leading a full life together. Normally a cheerful, vivacious woman, over the past five years Mrs. von Eitzen’s health has deteriorated because of the constant stress.
The latest bombshell has left her “devastated.”
“They [the INS] are absolutely ruining my life,” she said. “We’ve done nothing but INS stuff for five years. And this past week it’s been every day, it never goes away. Wolf works on the computer, and I type and type and type. Then he e-mails it. There’s no end.”
Von Eitzen’s attorney Brandon Marinoff says he is baffled by the attitude and actions of the INS towards his client, which make the case unique from the hundreds of cases he has handled.
“It’s a really bizarre and sad situation,” he said. “I’ve had clients whose past behaviors have been a bit more — shall we say, suspicious, like criminal behavior — that have been given waivers and gotten their green cards through their U.S. citizen spouses and family members. And here we have a man who is just a decent guy, who has done nothing in his life but contribute, who is married to an American — and they want to take him away, put him behind bars, and treat him like a criminal.”
In Marinoff’s view, “These INS people years ago decided this is a bad-faith marriage, but Wolfgang is so dedicated to his wife, who is now ill, that they have mud on their faces.
“This could kill her. It’s a disgrace. It’s an abuse of power,” he said.
Marinoff and the von Eitzens are more than a little concerned that von Eitzen will not simply be deported, but taken into custody and imprisoned either in this country or his homeland. His passport was confiscated by INS officials in May 1996 and never returned to him, despite numerous requests. It expired in January of this year.
“I have no legal papers to reenter Germany,” said von Eitzen. “I have no legal documentation. Even if I wanted to leave of my own free will, I couldn’t. How can you leave or re-enter a country when you don’t have any papers? I could be put into prison there until I prove who I am.”
A dose of ‘diesel therapy’?
And Mrs. von Eitzen fears he will be subjected to a dose of “diesel therapy” — that’s prison slang for the common practice by federal law enforcement agencies of shipping prisoners from jail to jail, stopping only for a night in one place, keeping them moving throughout the country, out of contact with families and their attorneys.
“What we think they’ll do on Monday,” she said, “is to put him in jail until he gets his papers from Germany and keep him there for three, four, five months or longer — who knows. Then they’ll probably ‘diesel’ him around the United States so that I can’t find him.”
Marinoff agrees that von Eitzen’s lack of papers may stymie INS plans for immediate deportation.
“The INS has said, come in on Monday because we’re taking you into custody. We’re going to treat you like a criminal and put you behind bars. Then we’re going send you to Germany whenever we get a travel document, which will probably not be for three months. Or six months,” he said.
Marinoff said he filed an emergency stay with the district director in Helena, “and they said ‘no’ — which is ruthless.”
In the past week motions were filed at various levels, including in
federal court a writ of habeas corpus — a petition claiming that
detention or imprisonment is illegal and demanding release. On Monday morning Marinoff will have an emergency hearing by telephone with the Board of Immigration Appeals in Fairfax, Va., asking them to grant a stay.
A political target?
There’s no obvious reason for the vendetta against the German national.
Officially it’s because he is “out of status.” He had entered this country
on an E-2 Treaty Investment visa from the U.S. State Department, a special
arrangement for people who want to set up a business here and have money to
invest. Von Eitzen established a successful video-production business.
In its earlier article, WorldNetDaily detailed the battle between von Eitzen and the INS, and explained how this had been precipitated following the breakup of his earlier marriage to a German national. In 1994 his former wife filed for divorce which was finalized in February 1995. Von Eitzen lost most of his assets in the proceedings.
“Basically, he lost his status,” District Director Harry Thomas told WorldNetDaily. “He came here and set up a business, and when he lost assets in a divorce case it affected his status. He has not left on his own, and he has not obtained another status on his own.”
But as WorldNetDaily reported, there is compelling evidence, albeit circumstantial, that von Eitzen was targeted because of his political beliefs and activities, which are on the conservative side of the spectrum. He is an outspoken critic of the public schools in Billings, and a long-time opponent of “Outcome Based Education” programs advanced in the early 1990s by former President George Bush, and continued into the Clinton administration, as part of “Goals 2000.”
The INS flatly denies that von Eitzen’s political ideology or his activities influenced its decisions and actions. Thomas described the case as “routine.”
Besides politics, here and there in the INS legal filings is evidence that bureaucratic snafus have also played a role.
Whatever the reason, von Eitzen and his wife have for five years had to spend considerable time fending off INS efforts to oust him from this country. For five years he has lived with the threat of deportation hanging over him.
But the approval of the I-130 petition does not automatically change an applicant’s status, and von Eitzen was aware that his legal troubles might not be over.
“They can come at any time, put me in handcuffs and haul me away. They did it before, and if they want to they can do it again,” said von Eitzen, recalling his first brush with the authorities in May 1996. At that time he was arrested at his home and transported to the INS facility in Seattle, Wash., where he was held for three weeks pending deportation — ostensibly because he was out of status.
“I was taken out of my studio in handcuffs by the INS with the explanation I am an illegal alien,” he recalled. “I showed them my German passport with the visa — which was good until 1997 — and my I-94 which shows I am legal, but they were not interested.”
The I-94 is a residency permit granted by the INS that must be renewed annually or on return to this country following a leave. Von Eitzen’s I-94 was valid until Dec. 27, 1996. An INS judge allowed him to be released on bond, but that was the start of the complex legal battle in which he’s been engaged ever since.
As soon as the I-130 was approved, von Eitzen and his wife began assembling the follow-up paper work to enable him to apply for an adjustment in status.
On March 26, Mrs. von Eitzen’s sister and brother-in-law who live in Montana, but nearer to Helena than the von Eitzens do, delivered everything — fees and forms — in person as required to the INS.
On April 2, attorney Brandon Marinoff filed a motion with the Board of Immigration Appeals in Fairfax, Va., urging the panel to reopen von Eitzen’s deportation case, which it had rejected last July pending a final decision on the I-130.
“The Defendant in this case was originally denied Suspension of Deportation in 1997,” Marinoff wrote. “The primary reason the Judge denied this Suspension was because of his marriage to a United States citizen and the Judge’s perception that the marriage was bona fide and could form the basis for gaining a visa through the Adjustment of Status Procedure. The INS finally approved an I-130 petition filed by the Respondent’s United States citizen wife. The approval represents an avenue of relief that was not available at the original hearing.”
INS strikes back
The INS moved swiftly to counter this latest salvo, and drafted the notice of deportation von Eitzen received on April 13. The element of timing was not lost on him.
“Brandon filed a motion with the Board on the second, and the INS in Helena has 20 days to respond to the Board of Appeals, explaining either that they agree with us or, if they don’t, why they granted Jo’s I-130 but still want to throw me out,” he said.
“Just coincidently,” he continued, “It’s 20 days exactly from April 2 until April 23, the day I’m supposed to show up in Helena and be deported, or not show up and be declared a criminal. Meaning the INS in Helena is trying to avoid explaining anything to the Board. They are bypassing the legal process here by stepping in before the Board of Appeals can do something. That’s what they’re doing.”
As it turned out, INS attorney Ann Tanke wrote a response well before April 23. Not content with having him torn from his home and family, she urged not only that the motion to reopen the deportation case be denied, but that von Eitzen be barred from re-entering this country for 10 years.
According to Tanke, “He is now statutorily ineligible for a grant of adjustment pursuant to former Section 240B(d) of the Immigration and Nationality Act (“Act”) for ten years from the date of his scheduled departure.”
Her response in opposition is dated April 13, the same day von Eitzen received his deportation notice and a copy of District Director Thomas’ letter to Brandon Marinoff. Interestingly, it appears not to have been filed until April 19, which gives the appeals board very little time to make a decision.
Also interesting, it contradicts certain assurances made by Thomas in his letter.
“This Service has compassion for the concerns and issues of Mr. and Mrs. Von (sic) Eitzen,” his letter reads. “However, the law is clear and must be enforced. The respondent will be permitted to renew his request to return to the United States as a spouse of a U.S. Citizen, but he must accomplish this from Germany.”
Moreover, it contradicts an assurance Tanke herself made in July 2000, in a memorandum opposing von Eitzen’s Motion to Reopen his deportation case and before a final decision had been made on the validity of his marriage.
“Appellant is the beneficiary of an I-130 [marriage petition] filed by a United States citizen spouse,” Tanke wrote. “If it is true that the marriage was not entered into to evade the immigration laws, he [von Eitzen] will have an immigrant visa immediately available to him when that adjudication [I-130] is complete.”
Particularly telling in Tanke’s recent response is a casual admission of bureaucratic error regarding the I-130, with a dismissal of its importance in any decision-making.
In her words: “While he [von Eitzen] has requested a stay of deportation, he has not received a stay to date, yet he continues to violate the immigration laws of the United States by utilizing every dilatory tactic available to him to remain here in violation of the law. Rather than comply with the order of this Board, he chooses to complain about the administrative delay in the processing of the visa petition filed on his behalf by his spouse. While the clerical mistake that resulted in said delay was unfortunate, it does no excuse his flagrant disregard for the immigration laws of this country and the lawful order of the board. (added emphasis)
The nature of the “clerical mistake” is not explained, but it was apparently significant enough to derail the I-130 at some point. Von Eitzen was flabbergasted when he read those words.
“‘Clerical mistake’, ‘said delay’,” he exclaimed, “If they had approved Jo’s I-130 two years ago we wouldn’t be in this situation. Everything hinged on that.”
Tanke would not discuss the case with WorldNetDaily, and referred phone calls to Harry Thomas for comment. His remarks shed little light on why von Eitzen was being deported.
“I’m not going to review an individual case that’s still being adjudicated,” he said. “But if you’re asking in general, getting married does not stop removal proceedings.”
According to Thomas, von Eitzen’s case is routine. “I’ve not seen anything unusual in this case than any other similarly situated alien,” he said.
Asked why a man who has been in this country 20 years, has no criminal record, and is married to an American whose marriage petition was held up for four years but is now approved, Thomas responded, “Look, I’m not going to debate the case with you. Have you other questions?”
Design or ‘total chaos’
Seeking answers, WorldNetDaily contacted David Schipper, former Chicago prosecutor and author of “Sellout,” the expose that the Clinton White House deployed the INS for political purposes during the 1996 election campaign. According to Schippers, the INS received marching orders from the White House to fast track citizenship applications for tens of thousands of applicants, many with criminal records, in order to gain
additional votes for Democratic candidates.
“Thousands of criminals are now citizens of the United States because it was assumed they would vote for Bill Clinton and Al Gore,” Schippers wrote.
Last September, when informed about the von Eitzen case and how the couple had been waiting four years on their marriage petition, Schippers was astounded.
“But, my lord, they’ve been married four years? Four years? This is nuts,” he exclaimed.
When contacted recently and told that the petition had finally been approved, but that the INS was deporting von Eitzen anyway, Schippers reacted with one word:
“WHAT!” he cried. Then, “Wait a minute. They approved the marriage, so he is now recognized as being married to an American — and they’re deporting him? That doesn’t sound right, there’s something wrong here.”
Schippers asked if von Eitzen were “illegal before,” and was told he was out of status.
“Out of status is a totally different thing from illegal,” said Schippers. “This case does not sound routine to me. But I tell you, the INS is so screwed up, it’s a catastrophe. The Clinton administration left it in a state of complete chaos. Everyone I’ve talked to comments on the chaos inside of the INS.
“Here they are — they’ve got 60,000 felons that got citizenship in ’96. They haven’t deported any of them to my knowledge. Yet here’s some poor guy that they’ve decided they’re going to get. They’re going to throw him out. The whole thing is scary.
“But I don’t see anything sinister in it. All I see is total, complete chaos. That’s what you’re running into. That’s what you’re up against. It’s unfortunate, but that’s what seems to have happened,” he said.