Immigration odyssey ends in man’s victory

March 24, 2008

With help of lawyers and Sen. Chambliss, Kenyan man ends long struggle for green card

A Kenyan immigrant has achieved victory in his decade-long quest to fix a bureaucratic snafu that almost led to his deportation.

This month immigration officials approved Charles K. Nyaga for a green card, a goal that was achieved after a host of legislative efforts by Sen. Saxby Chambliss failed, but a move made by Nyaga’s brother more than 10 years ago came to light to save the day.

The system doesn’t always work, said Nyaga’s lawyer, Charles H. Kuck of Atlanta, "but in this case, it did."

Nyaga’s saga started on two tracks in 1997. That’s the year his brother Kenneth, a U.S. citizen, filed a family member visa application for Nyaga, who came to the United States to attend technical college.

That year Nyaga also won a State Department lottery that distributes about 110,000 diversity visa applications among would-be citizens from countries underrepresented on American immigration rolls. Nyaga submitted his application in February 1998, eight months before the deadline. But immigration officials failed to process it—other than sending his fingerprints to the FBI—before it expired at midnight on Sept. 30, 1998, the end of the federal fiscal year.

Immigration officials said they were overworked, but U.S. District Court Judge Orinda D. Evans didn’t accept that excuse, ordering the government to complete the process. In 2003, a panel of the 11th U.S. Circuit Court of Appeals voted 2-1 to reverse, saying immigration officials didn’t have the authority to revive Nyaga’s application after it had expired. That case was Nyaga v. Ashcroft, 323

In February 2004, when he was chairman of the Senate immigration subcommittee, Chambliss submitted a bill that would have allowed officials to reconsider some visa applications like Nyaga’s that had expired due to government inaction. But a month later Atlanta Immigration Judge William A. Cassidy ordered Nyaga to leave the country within 60 days. The judge stayed the order pending Nyaga’s appeal to the Board of Immigration Appeals, which ultimately upheld the order.

Nyaga testified on Capitol Hill in April 2004 when the House Judiciary subcommittee on immigration was looking into fraud and abuse in the diversity visa program. But Chambliss’ bill failed to get through Congress.

Chambliss tried again the following year, attaching his proposal to an emergency Iraq war supplemental appropriations bill. Chambliss also tried a couple of so-called private bills, designed to help only Nyaga, in 2005 and 2007, but they didn’t get out of committee.

In an example of the darkest hour coming just before the dawn, Immigration and Customs Enforcement agents came to arrest Nyaga and his wife last September. Kuck said last week when Nyaga called from ICE custody that day, one of Kuck’s associates found buried in Nyaga’s case file the receipt from the family visa application filed by Nyaga’s brother.

"It had become forgotten in the annals of time that this was there," said Kuck. Nyaga said in the back of his mind he had still "vaguely remembered something like that" but it had seemed his case was "almost irredeemable."

The line for family visas is years long, said Kuck, but, amazingly, the application was set to reach the front of the line the following month, in October 2007. "We pulled out the file and were looking for some other documents," said Kuck, "and it was right there. It was one of those ’Oh my God’ moments."

Nyaga, now 50, said when Kuck told him the news, "It was unbelievable, because it was almost a desperate situation at that time."

Kuck said Nyaga was in custody only one day. "We were able to get him released right away with Senator Chambliss’ intervention," he said.

Lawyers for ICE cooperated in asking Cassidy to reopen Nyaga’s case, according to Kuck. The immigration judge terminated removal proceedings in October.

At that point, said Kuck, it was just a matter of time—waiting for the green card interview with U.S. Bureau of Citizenship and Immigration Services that took place March 13. He said that day Nyaga and his wife and children received stamps in their passports saying they are permanent U.S. residents, and they’ll get their actual green cards in a few weeks.

That means they’ll always be able to live and work in the United States, said Kuck, having to go through no more than a standard green card renewal process. And they plan to apply for citizenship in five years when that option is available.

"I have rarely seen happier people," said Kuck.

Nyaga, who received a master’s degree from Atlanta’s Interdenominational Theological Center last year, cites Bible verse Jeremiah 29:11 to describe his story: "For I know the plans I have for you," declares the LORD, "plans to prosper you and not to harm you, plans to give you hope and a future."

Despite his degrees, Nyaga still works at a local hotel and for a cleaning service. The Powder Springs resident said he plans to pursue a doctorate degree rather than taking on his own church right now. His wife works at a Wal-Mart, and his son, 18, and daughter, 21, attend Toccoa Falls College, a Christian school.

After 11 years of up-and-down battling with the government, Nyaga sounds jubilant, not bitter. "One thing I’ve always known is that government does what governments do," he said. "But fortunately this land is a land of laws."

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