Wofford student, mother caught in the law of the land they love
It's when Hitesh Tolani can't seem to find the words that he sounds most like other college guys his age: the kind of fellows who dye their hair blond and regret it, forsake socks for flip-flops and post comical pictures on the Internet mugging with basketball buddies.
But one phone call and the 20-year-old Wofford College honor student realized just how different he is.
After a recent night out with friends, barely through the door of his family's Columbia apartment, he rushed to answer the phone. A distraught family friend was on the line.
The words were quick and harsh. "Is your mother OK? You've been deported."
The quiet between shock and realization seemed like an infinity.
Hitesh sounds so simply American as he struggles to explain the weight of the moment.
"I was, like, 'Wow,'" he says.
As much as Hitesh wants to be American — and as much as every "like" and "you know" and "y'all" says that he must be — he isn't.
His father, a native of India, died in 1995, one month before he won the right to claim his family's citizenship. Even though Gulab Tolani had spent years in the government's citizenship process, his death left Hitesh without an umbrella for legal status.
Hitesh's widowed mother, Jaya, must go to India, too, likely, their attorney says, by the end of the year. His 14-year-old brother, Ravi, will not, because he was born in New York.
Last month, the family was denied a hearing by an immigration appeal board, the final step before deportation in the eyes of the Immigration and Naturalization Service.
Once out of the United States, the two would not be allowed to return for 10 years.
Hitesh would leave behind a promising academic career and lofty job goals.
He graduated from Irmo High School with a 3.9 GPR and has continued his success at Wofford, the private liberal arts college in Spartanburg where he ranks near the top of his class.
India is a place alien to him; he spent exactly one month there as a toddler when the family visited for a wedding.
"I can't fathom it," he says. "It's like someone coming to your home and saying, 'Leave Earth, live on Mars.' What do you know? The only thing you know is it's a red planet."
But Hitesh's story isn't unique. In fact, it's far from it, says Angela Kelley, deputy director of the National Immigration Forum, a Washington, D.C., advocacy group that challenges the INS and immigration law.
Kelley says immigration laws are a tangled web of loopholes and contradictions, and personal hardships often find no place in decisions.
In Hitesh's case, the INS wasn't looking for him; he went to the agency to clear up his status.
"As counterintuitive as it seems that we would turn our back on someone with these kinds of skills and this kind of prospect, we do turn our backs on people like that regularly," Kelley says. "It's a heartbreaking story that plays out every day in towns and cites across this country."
However, INS spokesman Russ Bergeron says the agency is merely doing its job. Only so many exceptions can be made, he says, and the rest is left up to the courts.
"We are meeting our obligations under the law," he says. "Should we arbitrarily ignore immigration law based solely on intelligence?"
And so a family agonizes over the prospect of being split apart.
Ravi — who hopes to follow in his brother's academic path as a freshman at Irmo High — wouldn't accompany his family to India.
His mother won't let him go out of fear that she can't provide for him in a place where the family knows no one. He is faced with the possibility of living his teen years in a foster home, far from the opportunity his father had worked to afford him.
"When I was 7, I lost my dad," Ravi says, with a stoicism that is the antithesis of his outgoing sibling. "Now I'm 14, and I'm about to lose my brother."
The family has some hope, however slim.
Once lawmakers reconvene in Washington this week, South Carolina's longtime U.S. Sens. Fritz Hollings and Strom Thurmond say they will push a bill that would provide relief for the Tolanis.
But it's a long shot. Of 292 such private relief bills since 1999, only 29 have passed, about 10 percent.
Hollings helped the Tolanis secure a stay from the INS that will buy the family time until the end of the year, says their attorney, immigration lawyer Allen Ladd of Spartanburg.
Ladd also has filed an appeal to a federal appeals court in Atlanta, but isn't optimistic.
Increasing criticism of the INS since Sept. 11 is leading to more deportation, Ladd says. But the INS rejects this notion.
So much love lost
Oct. 23, 1995, 3:47 p.m.
Although he was only 13 at the time, Hitesh remembers to the minute the afternoon his father died of hepatitis. So much love and support was lost when Gulab Tolani took his last breath.
In 1984, Gulab had brought Jaya and 18-month-old Hitesh, who was born in Africa's Sierra Leone, to Utica, N.Y., on a tourist visa. There, the family opened a clothing store.
Gulab's brother would sponsor the family for citizenship, a process begun soon after the family arrived.
Hitesh says Gulab was a father both "serious and jolly," serious about his children's education, but calmed by his devout Hindu faith.
The family moved to Columbia in 1991. Gulab liked the earlier springs and warmer Southern weather and hospitality.
They opened a clothing store just west of Interstate 26, an area dotted with pines, where apartments with peeling shingles now hint at its fading status as a middle-class suburban mecca.
Hitesh remembers his father waking him on school mornings, ironing his clothes while Jaya cooked breakfast in the family's small apartment kitchen.
On summer days, Hitesh and his father would wake up early to walk five miles down busy St. Andrews Road to a Hindu temple.
It's in the memory of those walks that Hitesh now finds an infinite space to live with his father and ponder the lessons of education, responsibility and respect.
"Those are the times I connected most with my dad," Hitesh says.
He recalls how they joked about dodging balls from a miniature golf course along the way.
The Food Lion across the street is still there. The Putt-Putt course isn't. Like the time with his dad, it exists only in memory.
Faith allowed Gulab to live longer than anyone thought, Hitesh says.
In his last month, waiting on a liver transplant, Gulab faded in and out of consciousness in a Charleston hospital room. Doctors had said he wouldn't emerge from his coma.
Jaya refused to leave his side. Then, near the end, seven days of unconsciousness broke, and Gulab called his family together.
He was waiting for the Hindu holy day, Diwali, a day as cherished to Hindus as Christmas is to Christians.
A floating day determined by the phase of the moon, Diwali came early in 1995. Hindus believe, as Gulab did, that if you die on Diwali, you skip reincarnation and go straight to heaven.
For days, Gulab meditated and chanted. He had made it. Diwali came. Hours later, as Jaya, family friends and hospital staff looked on, he sat up in his bed, stretched his arms upward, fell back and died.
Hitesh's mother cried every day for a year.
Like anyone battling chaos with faith, Hitesh finds meaning in the early Diwali, just as he tries to find meaning in everything else.
Stepping into a new role
Since his father's passing, Hitesh has assumed the role of family leader, which fits his firstborn status and Type A personality (the clothes hangers in his closet are separated, plastic on one side, metal on the other).
When his mother's car breaks down and he's home from school, Hitesh is there to take her to the clothing store she owns 20 minutes across town.
He watches over his brother in the family's modest apartment, where a penny is taped — heads up — over the door frame, a Hindu good-luck token. The "Don't Quit" poster framed on one wall — like something you'd read on a greeting card from an overly sentimental mother — hints at their resolve.
Hitesh makes sure the PlayStation 2 sprawled across the floor isn't too much of a distraction from his little brother's education.
Ravi rarely calls Hitesh by name. Rather, he refers to him as "bahya," which means "respected older brother."
At home, they share a room; when Hitesh is away at Wofford, Ravi calls his brother frequently, still hungry for guidance.
"He's always there for me," Ravi says.
Hitesh looks and sounds nothing like the foreigner he's told he is, save for what he calls his "lightly toasted" complexion.
He wears an orange golf shirt with a garnet University of South Carolina hat, which might hint at a conflict were it not for years of cheering in the stands of Williams-Brice stadium.
The bill of his hat isn't pulled down over his eyes. It points upward, letting free his affable nature and signifying his openness.
Were it not for his honesty and his determination to attend a university, Hitesh and his mother might have flown under the immigration radar.
All his life, Hitesh had been told he was born in Chicago, not in Sierra Leone. Jaya says she and Gulab decided it was best so that Hitesh wouldn't feel alienated from his peers.
Getting citizenship, Hitesh explains, is like going to the movies: First you stand in line to get your ticket (permanent residency), then you wait again for the ticket to be torn (citizenship).
The family's attorney early on in the process kept telling them that any day they would reach the end of that long ticket line. No need for Hitesh to be anxious, his mother thought.
"We knew that we were going to get it," Jaya says. "We thought, 'By the time he grows up, we're going to get it.'"
The end of the line, as it happened, was a month after Gulab died. He was the family's legal link to permanent residence.
Hitesh has always placed school above play, almost to the point of obsession.
When the family first opened their clothing store in Columbia, a robber pointed a gun at young Hitesh's head. All Hitesh could think about was his history homework — that is, until he felt gunmetal pressed to his head. In high school — where he served time as "The Sting Man," the school's mascot — Hitesh was a teacher's dream, says Mylla Markland, a guidance counselor at Irmo High
She says she bonded early on with the young man who "lived in the guidance office."
He worked tirelessly to find ways to fund his education. His dream always was "to go to an Ivy League school."
"He just goes full blast," Markland says. "It makes you think, 'Whatever he's taking, I want some of it.'"
Fighting to be strong
In 1997, Jaya had sat down with her son to tell him of his status as a non-citizen. Tears flow when she speaks of this encounter.
A year earlier, just after Gulab died, Jaya was stricken with breast cancer and was forced to fight the disease with chemotherapy.
The death of her husband meant a frightening new world.
"I was so much dependent on my husband," Jaya says. "I didn't know how to buy groceries."
But Jaya fought to be strong. After surgery to remove a breast, after each chemotherapy, she was back to work within days.
She says she didn't want her children to see weakness. "I don't want to be dependent on anybody," she says.
As her husband did, she finds strength in faith; she "sees God in every person." But still, she is afraid, and she worries about losing health insurance.
"I don't have a home anywhere," Jaya says. "Everything I have is here. I'm a beggar anywhere else I go."
Amid the chaos of her husband's death and her own cancer, Jaya wasn't able to keep track of the family's status, leaving them exposed as "undocumented aliens." In that time, Congress changed immigration laws, making it tougher for undocumented aliens to gain citizenship.
The family's medical troubles had drained their finances. When time came for Hitesh to secure financial aid for college, he soon realized that his legal status made him ineligible.
Hitesh believed the best route was to go to the INS to straighten out the problem. The INS immediately put him into deportation proceedings.
An inescapable fate?
As a high school senior in 2000, Hitesh had acceptance letters from Duke, the University of North Carolina at Chapel Hill, Emory and the USC Honors College. The tripwire each time was his lack of legal residency.
Wofford made a special effort to enroll Hitesh despite his citizenship struggles. A Byrnes scholarship pays a small portion of his tuition; Wofford pays the rest.
In August 2000, just before Wofford students reported for class, an immigration judge ruled that Hitesh and his mother would have to leave the country.
During a six-hour hearing, the judge sympathized, but could find no way around the law. Hitesh petitioned the Board of Immigration Appeals.
It would take two years to learn the resolution. In the meantime, the family was allowed to stay.
Hitesh moved on with his college life. He had always wanted to study biomedical engineering, but Wofford didn't offer that. So he chose computer science and a program that would allow him to transfer to an engineering program at Clemson or Columbia University in New York.
And he continues to impress teachers, just as he did at Irmo High.
He's the kind of student that professors notice — for the right reasons, says Carol Wilson, a Wofford English professor who lives in Greenville.
"There's an idealism in him that I admire," Wilson says.
But no amount of idealism can change his immigration status.
Last month the two-year reprieve ran out. The Board of Immigration Appeals declined to hear his case and told Hitesh that he and his mother had to be out of the country in a matter of weeks.
Not even the lowbrow humor of the latest Austin Powers movie could distract him from his fate. He went to see "Goldmember" a few days after learning of the decision, and while his friends laughed, Hitesh just stared. He says the idea of moving to India is as foreign to him as anything he can imagine.
Whenever he hears his parents' native language, he relies on his mother to interpret. He can only make out a few words.
"It's not home," he says. "This is home."
Like most people when they're young, Hitesh has found a circle of friends — many of them with Indian heritage, though he says relating to Indian immigrants is a much different story.
"I cannot relate to them," he says. "They are on a totally different level. I'm distinctly American. I have Indian friends here, and I relate to them very well."
Nikhil Sharma, Hitesh's best friend from high school, is one of those friends. He speaks of Hitesh's selflessness.
"He puts, like, everyone else before himself," Sharma says. "That's a good thing, but it can also be a bad thing."
The 19-year-old University of California-Berkeley student doesn't understand how Hitesh can be forced to leave if he's making every effort to be honest.
"His honesty is what got him trapped in this situation," he says. "Being an American citizen is more than some check mark on a file."
But as far as immigration law is concerned, that check mark matters.
And if it didn't, the country would "surrender its national sovereignty," says David Ray, a spokesman for the Federation for American Immigration Reform, a Washington, D.C., group that pushes for tougher laws and better enforcement.
"If people come here and flout the immigration laws and get away with it, there's really no reason to obey the immigration laws in the first place," Ray says. "There have to be repercussions for failing to follow by the rules, as in every aspect of life."
So many people living life in America aren't here legally, says Kelley, of the immigration advocacy group, but the image of illegal immigrants crossing the border in the black of night is only partly true.
The immigration forum estimates 8 million undocumented aliens. Of those, 40 percent enter legally but run out of eligibility, like Hitesh and his mother, Kelley says.
In 2000, there were 184,775 people deported from the United States, and of that number, 3,279 were deported from the Atlanta region. The INS says that's the nearest it can come to determining how many are deported from South Carolina.
Of the 3,279 who were deported from the Atlanta area, 702 "failed to maintain status," a category Hitesh and Jaya fall under.
The Tolanis face tough changes that were made in immigration law in 1996, an infamous year in the eyes of immigration advocates.
One example: After 1996, immigrants legally here but without citizenship could be deported for crimes committed before the law was passed.
That meant infractions like smoking marijuana or getting into a barroom brawl in college would be deportable offenses, Kelley says.
Currently, lawmakers are working to ease that restriction, but changes overall are slow to come, she says.
"Our immigration policies are broken," Kelley says. "As this story shows, it's really hard for people who want to play by the rules to be here legally."
However, Ray says the 1996 changes were needed to ensure that immigrants played by the rules early on. And he says the estimate of 8 million illegal immigrants in the United States proves the laws aren't too stiff.
The 1996 law, he says, offers discretion by the U.S. Attorney General's Office for cases with special hardships.
But the fallout of Sept. 11 changed attitudes, says Ladd, the family's attorney. Immigrants are more likely to have special appeals brushed aside now, he says.
With more pressure to crack down on potential terrorists and with criticism for 9/11 failures, the immigration system — both the INS and the courts — is taking an even harder line, he says.
The family is appealing to the 11th Circuit Court of Appeals in Atlanta on grounds that Hitesh and Jaya were denied due process by the appeal board.
"Sept. 11 really put the nail in the coffin," Ladd says.
The 11th Circuit appeal might be the family's last chance, he says. Lawmakers aren't likely to pass the private relief bill sponsored by Sens. Hollings and Thurmond in so short a time, he says.
Kelley says it's rare for illegal immigrants to approach INS as Hitesh did, and she says she would have advised against it until laws changed.
However, Russ Bergeron, the INS spokesman in Washington, says that "it's not unusual" for aliens to approach the agency.
And while the INS generally targets criminals for deportation, any illegal aliens are liable to be placed into deportation proceedings if the agency discovers them, Bergeron says.
"Our priority is to search out and find individuals who are illegally in the United States and who are committing crimes," he says. "That doesn't mean that we don't apprehend and place into deportation proceedings people who are non-criminals."
Bergeron says that of the 103,505 people deported in an eight-month period following the terrorist attacks, more than half were not criminals.
The year before — from Oct. 1, 2000, to June 30, 2001 — 135,772 people were deported, 82,372 of them non-criminals.
Those statistics also debunk a Sept. 11 "myth," Bergeron says.
Deportations are down 24 percent over those time periods, largely because fewer people are entering the country since the terrorist attacks, he says.
"The claim that you have a lot more people being deported from the United States because of 9/11 is simply not true," he says.
Bergeron says Hitesh and Jaya might have had the option of voluntarily leaving to avoid a deportation blight on their record, then applying for a waiver back into the States.
But without guarantees. Ladd says if they had left, their chances of returning to the United States would be slim to none.
Because their status lapsed for more than a year, the two face a legal hurdle that could bar them from returning to the States for 10 years, even if Ravi sponsored them in seven years when he turns 21 and is eligible.
Ladd says the INS should be criticized for failing to exercise discretion, much as a police officer would refrain from giving a speeding ticket to a woman in labor.
Bergeron says the labor analogy is unfair. The woman is in a state of emergency and duress. Hitesh's circumstances, he says, are for the judicial system to consider.
Ladd argues that the death of a father, a mother stricken with breast cancer and a brother who would be left behind sounds like duress to him.
Uncertain future
Hitesh is beginning another school year, pressing forward as if December won't be his last month at Wofford, where he says a "smile greets him around every corner."
He's hoping lawmakers can agree to let him stay or the appeals court will grant some relief. He's done all he can — and he's asking anyone who's interested in helping to visit his Web site, chickna1.tripod.com/HELP.htm .
He is preparing himself for the outcome, even if it means he must leave this country behind.
"I have to keep it real," he says, again in youthful American vernacular. "I have to be practical. There's been many, many times where my hopes have risen up and been floored in a matter of seconds."
Through it all, though, Hitesh says he's learned something invaluable: People care.
"God forbid, if we have to leave now, I'm going to leave feeling extremely loved."
