Visa -- It's Everywhere You Want to Be
A large world map hangs above Gale Frierson's twin bed in his Capitol Hill apartment. Red-pin flags stick out of almost every country, marking the 67-year-old retiree's extensive travels. A year ago, he and Amarzaya Toodoi would often stare into the map, sounding out the names and tracing the route Toodoi had traveled to get from his home in Ulaanbaatar, Mongolia, to the United States. Frierson used the map as a tool to teach Toodoi English, but he also wanted to instill a message in the soft-spoken young man: You are here. You made it.
That was before Toodoi lost his visa on technicalities.
Frierson's eyes linger on the world map, but these days, he is interested in a map of another sort. Hundreds of pages of documents lie splayed across his bedspread, detailing the path that 24-year-old Toodoi has desperately followed in his attempts to continue studying in the United States.
"I guess I'd have to say that until I met Amarzaya, I was a relatively complacent American citizen," says Frierson, a gray-haired bookkeeper who has waged a one-man campaign for Toodoi's return. "Right now, I'm as irate as hell."
Education is highly valued in Amarzaya Toodoi's family, as it is for most of the Mongolian population, which has a 99 percent literacy rate. Toodoi's father is a retired professor of veterinary medicine; his mother is a retired schoolteacher. Troubling economic times have made money tight for them, so saving to send Toodoi to college in America was a big sacrifice for the family.
When the U.S.S.R. collapsed, in 1991, Mongolia lost its primary economic partner, and the socialist nation of 2.7 million was forced into a deep recession. Pensions, fixed wages and assured factory jobs all vanished as the new government struggled to embrace democracy and free markets. For Mongolian leaders who have languished for the past decade in post-communist limbo, the country's future salvation lies in buzzwords such as "privatization" and "foreign investment." As a result, Mongolian businesses are desperate for employees who speak English and have been educated in the United States, the ivory tower of free enterprise and competition.
"We learn a lot from [studying in the U.S.], and then, when we go back, we can use all that knowledge and experience in Mongolia," says Orgiltuya Dashzerge, who just completed her master's degree in environmental sciences at the University of Colorado at Denver and is president of the Mongolian Student Association. "And so when we come back to Mongolia, it's great. People will say, 'Oh, she was studying in the U.S., and she was studying this subject, so she can be useful.' It's a big chance for us to study here."
With 36 percent of Mongolians living below the poverty line and the unemployment rate hovering around 20 percent, an American education often provides the only opportunity to find good employment for young people like Toodoi. So when he was granted a student visa in October 2001 to come to America and study business, it was cause for celebration. He would return and work for a large Mongolian company and help his parents, perhaps move his family from their ger, or yurt -- a domed, tent-like structure made of lattices and canvas -- into an apartment that better protects against the cold Mongolian winters.
After two days on a bus from Ulaanbaatar to Beijing and then on planes to Tokyo and the U.S., Toodoi finally arrived in Chicago on October 27, 2001. He clutched an I-20 student enrollment form that identified "ELS Language Center Santa Monica" as his primary destination for study. (The ELS program provides intensive English instruction for international students in this country.) Unsure of what to do, Toodoi phoned a friend of his brother's who is a graduate student at UCD. The friend's advice was to come to Denver: ELS has a location at Regis University, he noted, and Denver has the largest Mongolian community in the nation. A welcoming community and a familiar face sounded ideal to Toodoi, so, he says, he called an ELS official who approved his transfer. A few hours later, nervous but thrilled, he boarded a Greyhound rolling toward the Mile High City. He was blissfully unaware that because he failed to attend the first school listed on his I-20, immigration officials would later say that he violated his student status -- even though there is no ELS program in Santa Monica.
Since 1989, when the first two Mongolian students landed at Stapleton Airport to attend the Colorado School of Mines, hundreds of students have come to this city, which now has an estimated 2,000 Mongolian residents. In 2001, at the behest of the Colorado-Mongolia Project, Denver and Ulaanbaatar became sister cities. "There are striking similarities between the Colorado prairie and the Mongolian steppes, the Rocky Mountains and the Altay [Mountains] of Mongolia, the animal life, the climate," says Jim Wagenlander, a Denver lawyer who is one of three honorary consuls for Mongolia in the U.S. "Mongolia is very dependent on agriculture, tourism and mining, and those match very well here in Colorado."
But it still wasn't a smooth transition for Toodoi. On his way to register for school at Regis University, he got hopelessly lost while riding the bus, and what should have been a thirty-minute trip lasted several hours. Then, when he finally made it to campus, he encountered what he calls a group of "rough-looking" young males. Toodoi's only concept of American street culture came from Hollywood movies, where "everyone carries guns" and homeboys shoot first and talk shit later. He thought they were going to kill him, even though they were probably just undergrads hanging out between classes.
When he finally found the ELS building, Toodoi was looking for a friendly face but instead met with a foreign-student officer who he says was very rude and abrupt. Already severely unnerved, Toodoi panicked and told the administrator that he was going back to Mongolia. When he returned to his brother's friend's house, his buddy told him not to worry: Toodoi could simply transfer to a different school.
Another case of bad advice. The ELS program requires students to attend their initial school for at least four weeks before transferring so that the updated I-20 forms can be approved by the Immigration and Naturalization Service. Because Toodoi didn't follow that process, when his paper trail was later reviewed, it looked as if he'd simply disappeared.
Unaware of the rule, Toodoi took his friend's advice and spent a few weeks looking around at different language schools in Denver. He finally decided on the Colorado School of English, whose next session was to begin on January 15, 2002, following the holiday break. Toodoi completed an intensive six-week course at the school and passed the English Placement Test on March 19. At the bottom of his transcript, his professor checked off the box recommending that the student "attend college full-time."
Toodoi promptly enrolled at the Community College of Denver, signing up for the fall term, unaware that there was a summer session. However, INS policy states that students who are out of school for more than sixty consecutive days are in violation of their student status. Toodoi was out of school for more than two months.
Emita Samuels, the international student advisor at CCD, says that it's the responsibility of the school to ensure an international student's visa status is in order before enrolling him and issuing a new I-20. Samuels, who was given permission by Toodoi to speak about his student history, thinks that advisors at CCD probably noticed the gap but assumed that any INS reviewer would overlook the short violation since students aren't required to go to school during the summer. "Foreign students don't know all these rules, but people think they do because they came on a visa," Samuels says. "But I think when you're talking to somebody whose language is not English, then you're expecting too much for them to follow every letter of the law. I mean, people here in the United States don't even understand it."
Even during the time that Toodoi was technically in violation of his student visa by not being in school, he was still studying. Gale Frierson met Amarzaya Toodoi in the summer of 2002 while Frierson was working part-time as a bookkeeper at the 7-Eleven at the corner of 13th Avenue and Pearl Street. He would occasionally have to work the counters, and he came to know Toodoi, who lived in a nearby apartment, as a regular. But the boy's poor English made communication difficult, and Frierson often found himself playing charades with Toodoi over a Snickers bar.
Eventually, they became better acquainted, and Toodoi mentioned that he was hoping to improve his English before his fall classes at CCD began. Frierson had been a high school German, French and English teacher before switching to a career in hotel accounting, and, although he hadn't taught in nearly thirty years, he offered Toodoi free tutoring sessions.
The pair spent several hours a day together at the library or at Frierson's apartment working on Toodoi's pronunciation and preparing him for college. "I don't think in a long time I'd seen a student who was as readily focused," Frierson says. "He knew when he came here exactly what he wanted and what he had to do to get it. He wanted his education, he wanted to learn English, he wanted to learn how things worked."
Even after Toodoi's classes started, he and Frierson continued working together, and after three months, the young man's English had improved dramatically. He was composing essays for his classes and often spoke freely -- in English -- about his favorite things in Denver: working out at the YMCA; the 16th Street Mall; his classes and his fellow students, who he thought were friendly and cultured. Toodoi eventually moved into the living room of Frierson's apartment in order to save money and be closer to his classes and a job as a parking attendant on the Auraria campus. He began referring to Frierson as his "American dad."
"Why did I start calling Gale my 'American dad'?" Toodoi writes in an e-mail from Mongolia. "Because we are very good friends, and we trust each other. He honest, very kind and best man I have ever seen. He help me like his son, and I like to help him like my father."
One day in October 2002, Toodoi came home and showed Frierson a letter he'd received from the INS. The request for reinstatement of his visa filed back in February had been denied. According to the letter, Toodoi had violated his student status by "failing to maintain full-time, good academic standing" while changing schools earlier in the year. Stapled to the back was a notice informing Toodoi that he was to appear at an immigration-court hearing and that removal proceedings had already begun.
The local INS offices won't speak about specific cases, but an agent would say that Toodoi's denial for reinstatement was probably a result of the post-9/11 era, which has brought with it a black-and-white mentality. "Either you break the law or you don't; if you do, then the penalty must be paid. In other words, regardless of a student's or worker's current moral and/or legal status, he or she will be deported if every regulation is not perfectly followed," the agent says. "Pre-9/11, the student tracking system was more lax -- students could come in, take classes, bum around the country for a while, and nothing would happen. I think many people think that the 9/11 terrorists had this freedom, and tightened immigration policies are in response to lawmakers' requests -- and, by extension, the voting public's, as well."
According to the INS, Toodoi had three technical violations that affected his student status: He had failed to attend ELS Santa Monica, the first school listed on his I-20; there was a semester gap between enrollment at his first and second schools; and there was another gap between enrollment at his second and third schools.
Toodoi was unsure of what to do. He had paid the $4,500 per semester for school, studied hard and hadn't even known he was in violation until he had been in the country for almost a year. His Mongolian friends told him that the situation didn't look good, and that he could either quit school and become an illegal immigrant or be sent back to Mongolia.
Frierson, however, told Toodoi that it had to be a misunderstanding and that he should fight it. "I said to him, 'Amarzaya, if you're ever going to get a decent record for yourself in this country, do it by the book. If you do that, things will work out for you."
Toodoi agreed, and just before his December 10 immigration hearing, he and Frierson hired immigration attorney Joy Athanasiou. At the hearing, Athanasiou was granted a continuance so she would have more time to prepare her argument and ask the Denver INS office to reconsider its denial. Meanwhile, Toodoi completed his first semester at CCD and earned two As, a B and a C.
Athanasiou filed another reinstatement application to the INS, which clarified Toodoi's circumstances. In conversations with officials, she explained that at no time did Toodoi violate the spirit of his visa, which was to study. She presented school records and letters from Emita Samuels, Toodoi's advisor at CCD, the Mongolian Embassy, Mongolian honorary consul Wagenlander, and an affidavit from Gale Frierson; they all attested to Toodoi's dedication to his studies and recommended he be reinstated. She also noted that because foreign students must enroll and pay significant amounts of money before coming to the U.S., they are not, as in Toodoi's case, able to visit the schools ahead of time. The request was denied.
Unfortunately, in March 2002 -- just after Toodoi filed for his first reinstatement -- INS Commissioner James Ziglar had sent a memo to all local INS districts stating, "Effective immediately, I am implementing a zero-tolerance policy with regard to INS employees who fail to abide by Headquarters-issued policy and field instructions.... The days of looking the other way are over."
The memo, of course, was in response to 9/11, and INS agents across the country took it to heart. "During that period, when the zero-tolerance policy was in place, any application that asked for something unusual or specific was more than likely denied," says Betsy Bedient, an expert on student-immigration issues for the American Immigration Lawyers Association.
As a result, Bedient believes that officers were taking Ziglar's instructions literally and more strictly enforcing rules that require students to attend the first school listed on their I-20. In compliance with Ziglar's directive, the INS district office in Denver was prepared to start deportation proceedings in Toodoi's case. Federal immigration judge Donn Livingston realized that Toodoi's violations were fairly minor, so instead of deportation, he ruled to grant Toodoi a voluntary departure. That departure was to take place within 120 days, which would allow Toodoi to finish his spring semester at CCD. Toodoi could return to Mongolia of his own accord, with a clean immigration record, and would be allowed to reapply for a new student visa.
"[The judge] explained to him in court that all he had to do was go back to Mongolia, reapply, and then he could be back at school in no time at all," Frierson recalls.
While he focused on his studies, U.S. tanks focused their sights on Baghdad, and the federal government underwent its most massive restructuring since the Defense Department was created in the 1940s. On March 1, 2003, the INS was amputated from the Department of Justice, renamed the Bureau of Citizenship and Immigration Services (BCIS) and then sewn in pieces onto the body of the newly created Department of Homeland Security (DHS). This gap in federal agencies, Toodoi later found, created dissonance between what the BCIS says and what the U.S. Consulate, which is part of the State Department, hears.
On May 18, Toodoi hopped a plane heading back to Mongolia. At Frierson's suggestion, he wrote a letter to Senator Wayne Allard before leaving, asking for his support in receiving a new visa and expressing his desire to start summer session at CCD on May 27. Upon arriving in Mongolia, Toodoi went directly to the U.S. Embassy to schedule an interview, which is now required of all visa applicants between the ages of sixteen and sixty.
At the interview a few days later, consulate officer Annette Veler found that although Toodoi had been given a voluntary departure to return to Mongolia, her computer records yielded no information as to why. She informed U.S. Consul Mark Hill that "Amarzaya could not or would not tell her the circumstances of his ordered departure." Suddenly, the voluntary departure that was viewed as a positive grant by the BCIS back in the U.S. was being seen as a negative event at the consulate in Mongolia. Under Section 214B of the INA, Toodoi's application was denied.
"She treated him like a deported criminal," Frierson says.
Athanasiou, who has represented other Mongolian students who were reissued visas by the consulate, was also surprised by the rejection and e-mailed Hill and requested another interview -- which required another $100 application fee. She armed Toodoi with school records -- proof of his perfect attendance and placement on the Dean's and Vice President's lists -- a letter from INS officers explaining the circumstances, and testimonials from Samuels and Frierson. But again, Toodoi's application was denied, this time by the consul himself.
"He told me with angry, 'You request the visa month ago which is 05-22-03, why are you coming back and request visa again?'" Toodoi recounts in an e-mail. He says he tried to explain his situation and the voluntary departure as best he could, but the language barrier was too significant, despite his hours of study with Frierson. Toodoi says Hill's complaint was that he hadn't returned after his first visa expired, even though Toodoi had new I-20s from CCD, which extended his student visa. "He say with angry, 'I will not give you visa because you didn't come back six months after,'" Toodoi writes. "I'm just wanted a visa to continue my school."
Frierson contacted Allard's office, which initiated an inquiry through a liaison between the consulate and the United States Congress. In response, Hill explained that Toodoi demonstrated that he was not a credible student because he had broken his student status. "When I issued a visa to him in 2001, I believed that he had strong, compelling reasons to return to Mongolia after six months in the United States," Hill wrote. "The reason he left the United States was not because of compelling ties to Mongolia, but because the BCIS had ordered him to leave."
Even though Toodoi was not deported, Hill still viewed the fact he was in removal proceedings in the first place as a negative. "It's a catch-22," Athanasiou says. "When students are denied reinstatement, they're immediately placed in removal proceedings. They have no opportunity to comply and leave the United States after this decision."
Wagenlander, the Mongolian honorary consul in Denver, rarely gets involved in visa issues, but this case stands out. "The problem is that here's a Mongolian student who was in fact studying at the time he became out of compliance," Wagenlander says. "And when he returned to get his new visa, he was penalized for doing that. And we understand from the INS that none of this should have been any determination for the consular official in Ulaanbaatar for denying or approving a visa, but it was."
"We never comment on individual visa cases," says Scott Weinhold, public-affairs officer for the U.S. Embassy in Mongolia, which issued approximately 58 student visas per month in 2003.
College and university administrators are distressed by the difficulties foreign students are facing in obtaining visas; in the three years since 9/11, higher education has seen a dramatic drop in the numbers of international students enrolled on campuses. For many institutions that are already facing huge budget shortfalls, the loss of the millions of dollars that foreign students bring is a blow they can't afford to take. Marjorie Smith, international-student administrator at the University of Denver, says that the decline in foreign-student enrollment is the result of delays in processing, which is fueling a worldwide perception that studying in America is too much of a hassle. More and more students are simply opting to get their educations in Europe, Canada and Australia.
"I think that September 11th underscored for all of us -- most acutely for those of us in international education -- that there is a lack of understanding across cultures," Smith says. "There is no better way to mitigate that than to share ideas and knowledge internationally, cross-culturally, in the classroom. What better place but in higher education to open one's mind?"
For the past six months, Frierson has dedicated much of his time lobbying for Toodoi's return. He's been in heavy contact with Allard's office, and he's been speaking to philanthropists, church organizations and Mongolian business interests. He speaks to Toodoi daily on the phone and can often be found at Wagenlander's office reading the Mongolian newspapers just to check what the weather's like for Toodoi. Recently, he sent his Mongolian son money to buy a jacket and some gloves.
"I feel partly responsible for the fact that he's stuck home in Mongolia right now, because I'm the one that suggested to him that he follow all the rules and do what was right," Frierson says. "That's one of the reasons I'm busting my tail to try to get him back."
Toodoi has an interview scheduled with the consulate on January 21, and Frierson knows it may be his friend's last opportunity to return. Visa hopefuls can apply only once a year, and if Toodoi is denied again, it's unlikely that he will get another meeting. Even if he is allowed to return, Frierson worries that he won't have enough money left in his savings to continue school.
Manual Chavez, another friend of Toodoi's and the building manager in Frierson's building, also is eager to have the young man back. He is planning a community fair to raise money for college for his friend, whom he remembers as being a hard worker and very diligent with his studies. "Our government has made it a point to tell us, basically, the kid's not worth their time. And we're telling them, 'You know what? He's worth our time,'" Chavez says. "And no matter what they say, we're going to get him back."
Toodoi is still optimistic about his prospects, even though he has missed three semesters of school so far, spent more then $7,500 in legal and travel fees, and is living back in the ger with his parents. "America is greatest country in the world," he writes from Mongolia. "Of course I'm frustrated with the system and discouraged because I don't have any fault, and I just want an education. If I don't finish school, it's just like throwing away thousands of dollars into a trash can."
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