A Horror Story From The Law vs. Ethics Files: The Mario Hernandez Saga [UPDATED and BACKDATED!]

Mr. Hernandez? Mr. Unger would like a word with you...

Mr. Hernandez? Mr. Unger would like a word with you…

This is complicated.

Occasionally a trusted source sends me to a link or a news item that turns out to be old, sometimes many years old. I assume it is current (I need to learn to check the dates), write the post, and then find out that what I wrote about took place in 1978. I usually trash the post. There have been a few like this. Now this story came to me from a trusted source, and linked to a current story, or so I thought. The post, on a site called “America Now,” is dated August 25, 2016. But WordPress pointed out, right at the bottom, that I had in fact written about Mario Hernandez’s citizenship problems two years ago. What? For a second I thought there were TWO Marios (Mario brothers?), who had the same problem, but no, they are the same guy.

The story  I was given today, based on this New York Times story from May of 2014, led to the post below. There is an ending to the story, which was explicated by me in the post of two years ago. However my two posts were on two different ethics issues, and today’s though inspired by a stale story, is still ethically useful. Pretend Mario plight isn’t two years old: that doesn’t alter the principles involved, or my analysis. I’ll tell you what happened at the end of the post..

***

Mario Hernandez, now 58, came to the U.S as a 17 year-old Cuban refugee aboard a 1965 “Freedom Flight.” Under The Cuban Adjustment Act of 1966, he was  eligible to become a permanent U.S. resident after one year of residence and a citizen after five. All he had to do was apply. He didn’t.

He did enlist in the U.S. Army, voted in elections, and passed background checks for his job. Mario finally  retired, and with his wife, planned a Caribbean vacation to celebrate his retirement after 22 years at the Bureau of Prisons. When he applied for a passport, however, Mario received the shock of his life: he wasn’t a citizen. He wasn’t even a legal resident.

Hernandez says he assumed the U.S. military took care of his naturalization papers when he enlisted to serve in Vietnam in 1975. As Felix Unger memorably observed in the famous trial episode of TV’s “The Odd Couple,” one must never assume, lest one “make an ASS of U and ME”…

“I thought I was a citizen — I’ve always been proud of being a citizen,” Hernandez told the New York Times.

Irrelevant.

“This cannot be real,” Hernandez continued. “I’ve been living here 49 years. This is the only country I’ve ever known.”

Irrelevant…Irrelevant…Irrelevant.

“I’m a veteran,” Hernandez also said. “I feel like I’m betrayed.”

Betrayed? Veterans still are responsible for following legal requirements. A veteran can’t argue that he is betrayed if the government prosecutes him for tax evasion because he assumed that as a veteran, he didn’t have to pay taxes, or for owning a gun without a license, because he assumed that the Second Amendment allowed him to have a gun without one. The ancient maxim, still followed in U.S. courts, is that “Ignorantia juris non excusat”: ignorance of the law is no excuse. Each citizen (or, in this case, non-citizen under the mistaken impression that he is one) is responsible for knowing his or her legal responsibilities.

For some reason, Hernandez’s  application for citizenship last  March was denied. Yes, that seems a bit harsh. Nevertheless, he has only himself to blame.

Immigration lawyer Elizabeth Ricci is representing Hernandez pro bono, and argues that  Hernandez’s service to and honorable discharge from the Army during Vietnam was during a “designated period of hostility,” which under federal law makes him automatically eligible for naturalization. Oooh, tough one: Vietnam was never a declared war, so I don’t know who “designated” it one. Hernandez could also begin the naturalization process all over again, as if he just came arrived from Cuba and wasn’t a veteran, but has been advised that challenging the rejection of his citizenship application is the better course.

His lawyer believes that the government may be preparing to bring charges against Hernandez for falsely identifying himself as a citizen, which could mean fines or even jail time. “I think they are gravely embarrassed,” Ricci told the Times, “and are trying to shift the burden on him now to make him look like a criminal.”

Wrong, counselor, but good representation. The burden was on him, from the very beginning, to file for citizenship. The law doesn’t, can’t and shouldn’t care why he didn’t, if nobody was physically restraining him. It was still his responsibility. He was lucky he went so many years before his failure to become a legal citizen was caught, but he can’t reasonably blame the government because he was.

The law was fair and reasonable. Many, many citizens have successfully followed it. That Hernandez messed up badly doesn’t make him a bad person, but it does make him a law-breaker….and an illegal alien.

Should the U.S. relent in this case, in light of special circumstances, and give Hernandez a break? Of course it should. That would be the ethical—kind, fair, compassionate— and smart thing to do, but government bureaucracies aren’t very good at smart or ethical. That’s another good reason for us to know the laws, and follow them. The main reason, though, is that it’s our responsibility.

***

Now for “the rest of the story,” as the late Paul Harvey would say.

Nine days after the  2014 Times story that somehow convinced “America Now” to tell its readers that poor Mario was a man without a country two years late, the Times printed a follow-up story, which was my source for the earlier Ethics Alarms post in 2014. Here’s the key section:

“In a statement, Chris Bentley, a spokesman for the immigration agency, said it apologized for handling Mr. Hernandez’s application as a regular naturalization case rather than a military one.“As soon as this error was brought to our attention, we immediately reopened the case,” Mr. Bentley said, “and this morning, after a thorough review of the case with Mr. Hernandez, we were able to approve his naturalization application.”

Well what do you know! The bureaucracy DID do the right, ethical and legal thing. Mr. Hernandez is finally a citizen. The agency even apologized to him.

__________________

Pointer: Tim LeVier

 

4 thoughts on “A Horror Story From The Law vs. Ethics Files: The Mario Hernandez Saga [UPDATED and BACKDATED!]

  1. Well I’m glad that Mario got his pathway to citizenship straitened out. Now Trump will have one less to deport. Incidently, isn’t it time that we took another look at the 14th Amendment?

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