By Thom Nickels
Whether you call people who are in the United States illegally ‘illegal aliens’ or ‘undocumented immigrants’ doesn’t matter much when you consider the by now infamous case of Keith Byrne, who came to the United States in 2007 on a Visa Waiver Program. The Visa Waiver Program is not a real visa. It simply permits the bearer to enjoy 90 days of life in the United States but when the 90 days are over you are expected to pack your suitcase and leave. Unlike scores of other Visas offered by the United States government, it is not a path to citizenship.
Keith Byrne met an American woman named Keren the very week that he was to return to Ireland. They fell in love and time stopped for the Fermoy, County Cork native. Keren and Keith were married a year later. Keith Byrne’s sister, Melinda Byrne, in an interview with The Irish Times, said that after his marriage “Keith set about trying to regularize his position in the United States regarding the Visa waiver program.”
For most people on a visa-waiver this would not have been a problem. Visa-waiver violations are not uncommon but with Byrne there was a glitch. What he thought would be a seamless green card application did not turn out that way when he volunteered to ICE that he had two youthful convictions in Ireland for simple possession of cannabis. That’s all ICE needed to hear. His application was rejected, putting him at risk for deportation. For the next ten years Byrne would be in and out of court appealing ICE’s decision.
On July 10, 2019 Byrne was taken into custody by ICE and placed in the Pike County Correctional Facility after being arrested him for “immigration violations.”
Early news reports stated that Byrne was offered a deal: sign ICE’s deportation order and leave the United States or face possible jail time when his case was heard in a year’s time. After deportation, Byrne would be eligible to return to the States in five years when he could reapply for a green card.
Worldwide Attention
The case has received worldwide attention. Nearly every Irish online site has a Keith Byrne story as well as endless readers’ comments that split 50-50 along thumbs up or down lines. Keith Byrne’s detractors tend not to see the nuance in his story but lump him in with wannabe jihadists and criminals trying to crash the Mexican border.
Philadelphia Inquirer columnist Christine Flowers, who helped the Keith Byrne story go viral, believes that Byrne’s detractors haven’t even bothered to read the stories of the chronology of what happened.
“The reason he’s in the situation he’s in right now is that he was trying to get good with the immigration service.” Flowers told me by phone. “Had Byrne not been honest about something that had occurred a decade before his green card application, it is about 100 percent certain that he would have his green card today. It is that honesty that exposed him to the very draconian elements in our immigration system.”
Flowers, an immigration attorney, says that people come into the US on the visa-waiver all the time, and if they get married to a US citizen, ICE will not arrest them but allow them to get their green card. “Look,” Flowers, explained, her voice going up a register, “You might not like Trump but this process doesn’t come from Trump. This whole crackdown started at mid-George W. Bush and was taken all the way through Obama and now it is with Trump. If ICE finds you and you have a visa-waiver they can pick you up at any moment even if you are in the process of getting a green card. That’s what happened with Keith even though his marijuana charges are not a criminal issue in Ireland and not a criminal issue in the UK. That’s what is so ironic.”
Flowers, a conservative on many issues, says she’d be the first person in line to say get rid of the criminal aliens, the gang bangers and even those who have 4 DUIs. “I don’t want them in the country. But Keith Byrne is the kind of person we want in this country, he was honest, unlike IIthan Omar whose family has some interesting issues. Omar is one of the horrific examples of ingratitude on the part of immigrants that I have ever in my life encountered.”
Keith Byrne’s attorney, Thomas Griffin, says United States law is clear when it comes to multiple marijuana offenses. “You’re allowed to have one offense—yes, that can be forgiven—if it is a single offense for personal use of marijuana less than 30 grams,” Griffin said. “Generally, a person in the world is inadmissible to the US for any controlled substance offense but there’s one little cut out which is personal use marijuana one time but less than 30 grams. Keith admitted to two offenses [when he applied for a green card] and that’s what started the whole thing.”
‘The whole thing’ in this case meant nine years of litigation for his client. “The case was hauled through the Third Circuit Court of Appeals, then back down to immigration services and then back off to the US District Court and then finally back to USCIF and then finally USCIF said [in February 2019], ‘We deny you again.”
The Removables
Griffin says that people come into the US almost everyday who wind up overstaying. Generally these are on non-immigrant visas that are given for specific purposes like making a speech or something work-related. “When these visa’s expire, you’re removable. But most of these people just keep living in the US. There aren’t enough police to monitor them; DHS doesn’t know when someone’s visa has expires so they’re not going to be hunting them down. That changes if somebody informs on you but it usually happens after a criminal encounter, a DUI or a bar fight,” Griffin said, adding that even in these cases the defendant can go to immigration court where they admit their crime and where the judge will ask them, “Do you have a defense against your removal?” While they can be deported, they have the right to due process.
Anne O’Callaghan, founder and board member of The Welcoming Center for New Pennsylvanians, says that she feels bad for Keith Byrne and his family but adds that she’s seen a lot of ‘Keith Byrnes’.
“A visa-waiver is not a path to citizenship. If you come in on a visa-waiver and you marry, you have to read the small print.”
In 1970, O’Callaghan came over from Ireland on a student visa and was undocumented herself for a total of two months. Like Byrne, she fell in love. “I was 27 and I thought: what do I do now? I decided to overstay my visa, and at that time I couldn’t have cared less. It didn’t matter to me. I wanted to see where the romance would go.”
O’Callaghan’s undocumented status didn’t last long. “I had a commitment to my job back in Ireland. Sean, the man I met in the US, came to Ireland but we came back to the US to marry. It was no trouble for me at all.” O’Callaghan says that decades ago Irish folks could come in and out of the United States a lot more easily than they can today.
“What the Irish used to do in Philadelphia before the age of high technology allowed us to read your eyeballs and your finger tips, was come to Upper Darby where they would have a massive over stay and then they would leave the country, go back to Ireland, tell the Irish government that their lost their Passport, get a new passport, then come in again and try to go via Canada, come down from Canada on a bus from Toronto and come into the US—with just a stamp on their passport from Canada and then stay here another 90 days. This system stopped with high digital technology. The Irish tried all kinds of things,” she added with a laugh.
Undocumented Romance
Romance seems to be the main culprit for visa-waiver over stays, especially among twentysomethings. “Usually they are young men who wanted to marry these girls, they wouldn’t take your advice,” O’Callaghan said. “I’d tell them ‘you have to take a deep breath, marry her here but leave the country and then apply for a visa as a spouse of an American citizen. That’s your best bet.’” While O’Callaghan expressed her empathy and concern for Keith Byrne and his family, she was quick to add that she has seen far more heartbreaking stories, especially involving Haitians and Vietnamese.
Then O’Callaghan told me how her eldest son followed a reverse immigrant trail by trading the United States for Cork City, Ireland, where he has lived for the last fifteen years.
When it comes to how many illegal Irish are in the United States, most news agencies reported 50,000 but that number seems to be way too high. Recently the online thejournal.ie reported that, “While we can’t be completely certain, the best available research evidence weighs in favour of John Deasy’s claim that the undocumented Irish population in America is around 10,000 to 15,000 people.”
Emily Norton Asinhurst of the Irish Immigration Center informed me that the 50,000 numbers came up a few years ago.
“Nobody can drill back down to how these numbers were derived from,” she said. “We don’t know how many undocumented Irish there are because it’s not like people are going to walk in and ID themselves as such. The Irish Immigration Center doesn’t ask a person’s documentation status to provide services that we provide. If someone wants to talk specifically about immigration issues, we are happy to provide guidelines and advice,”
As for Keith Byrne and his family’s future, Griffin is hopeful. In February 2019 USCIF stated that their denial of green card status for Keith Byrne was based on the fact that Byrne never filed a legal brief to defend his position. “The thing is,” Griffin says, “the lawyer had submitted it and we have proof that it was submitted. They sort of made their denial without giving Keith due process and reading his legal argument. They never saw the legal argument of what happened in Ireland does not disqualify him from a green card—they never read it.”
On July 24, 2019, Griffin told me that his group was about to file a Writ of Habeas Corpus in the federal court in Harrisburg to show that Keith Byrne was not given due process by the agency because they failed to read his brief. “We are asking them to stay his removal, release him from jail and to have USCIF read his brief and then make a decision.”
Released From Detention
That wish came true for Keith Byrne, Tom Griffin and all of Byrne’s supporters late in the afternoon of July 24.
Attorney Griffin sent me the following email just as I was finishing up this story:
“This morning (July 24) we filed an Emergency Petition for Writ of Habeas Corpus in the federal court in Harrisburg, PA.
At 3:30 p.m., Chief Judge Conner held an emergency telephonic hearing with me and the government’s attorney.
At about 4:10 p.m. the judge ordered the govt to release Keith from detention. We won the first battle.
As of now Keith remains in detention because the order came so late in the day.
I expect him to be released tomorrow (July 25) to get back to Keren and the kids, and to continue his fight for legalization in the federal court in Philadelphia.
Thanks for all the help to get the word out. I think the rapid, accurate, and heartfelt media coverage helped to slow the removal process down, allowed public pressure to build, and that gave us time to try a new legal strategy.”
Keith Byrne was released from detention on July 25 and has been reunited with his family in Springfield Township.