By John Johnston
The Cincinnati Enquirer

Toby and Luz Carpenter and their children Seliza, 13, and Daniel, 11, face a move to Mexico unless the Board of Immigration Appeals reverses a judge's ruling. (Steven M. Herppich/The Cincinnati Enquirer)

Two years ago, Toby Carpenter tried to do what he thought was right. But now he wonders if he made a mistake, one that could force his family to leave the country.

The 48-year-old general contractor lives in Independence with his wife, Luz, 39, and her two children from a previous marriage, Seliza, 13, and Daniel, 11.

Toby knew when he married Luz in November 2001 that the native of Mexico was an illegal alien. She has lived in this country since she was 18. Her children were born here, which makes them U.S. citizens.

"I thought it would be the right thing to do to try to get everything up to date, legal and all that," Toby says. So soon after getting married, he and Luz visited an immigration attorney and she applied to become a permanent resident.

But something in her past proved to be a hurdle. A big one.

In 1989, Luz and her first husband, Fernando, found themselves in the midst of an investigation into drug trafficking. At the time, they were living upstairs from the Mexican restaurant where they worked.

The Newport restaurant was owned by Luz's mother-in-law, who according to federal court records was convicted in 1990 on three counts: conspiracy to possess with intent to distribute drugs; importing controlled substances; and failing to report transfer of money from Mexico to the United States. She received a five-year prison sentence.

Says Luz: "When she called me to do something, it was over the phone. She said, 'You're going to get a package. I want you to give it to this person and collect this money.'

"I did everything she told me."

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Luz maintains she didn't know drugs were involved. "I didn't sell (drugs), I didn't get money, I didn't get anything for it," she says.

In all, five family members with ties to the restaurant faced charges.

Luz in 1990 pleaded guilty to a felony charge of "aiding and abetting in the use of a communication facility (a telephone) in furtherance of drug distribution," court documents show.

She says she chose not to go to trial because she was pregnant and couldn't risk facing a prison term. A plea deal, she says, "was the easy way."

Luz was sentenced to five years' probation. She says her probation was ended after a year.

There was no attempt to deport her, she says. She continued to live and work and file income taxes in Northern Kentucky, even after her first husband died of liver cancer 10 years ago.

Since 1990, her record is clean, except for a ticket for speeding 5 mph over the limit in 2002, according to the Kentucky Administrative Office of the Courts.

'They had issues'

In the spring of 2001 she met Toby Carpenter, who was divorced with two adult children. He had occasionally traveled to South America on mission trips. His interest in Hispanic culture led him to the Covington church that Luz attended.

They fell in love. Two months after their wedding, they met with Cincinnati immigration attorney Doug Weigle. In the application for permanent residency, they disclosed Luz's drug conviction.

"I advised them they had issues, but ... he wanted his wife here, so we proceeded," Weigle says.

Last September, after an interview at the Louisville immigration office, Luz told she would be deported. The Carpenters were stunned.

"If we didn't try to do what was right, if we'd have just left things go, probably nothing would have happened," Toby says.

In November, the case went to an immigration judge, who ruled against the Carpenters.

Luz's 14-year-old drug conviction looms large, Weigle says. If not for that, "This would all be a no-brainer. She'd be walking around with her green card right now. That's the only impediment. There isn't anything else on her record."

The Carpenters have filed an appeal with the federal Board of Immigration Appeals, which is part of the Executive Office for Immigration Review within the U.S. Department of Justice.

Greg Gagne, a spokesman for that office, says that 1996 revisions in immigration law broadened the definition of what is considered an "aggravated felony."

Luz's offense falls within that classification.

Also, the changes in the law "removed virtually all discretion by immigration judges to take into account any other factors" such as good behavior and family circumstances.

Before 1996, Weigle says, "someone in her situation probably would not have found herself in this predicament. (Immigration officials) probably would say, you're married to an American citizen, you've got a couple of kids, we'll allow you to file for forgiveness."

37,000 cases pending

The Board of Immigration Appeals has about 37,000 cases pending, Gagne says. About 25,000 move through the system each year.

While the Carpenters wait, Luz is legally authorized to work. She is a receptionist and interpreter for Covington's HealthPoint Family Care.

But the uncertainty of the situation is difficult for the family.

"I try to keep going every day like normal," says Luz, who worries about her mounting legal fees.

Toby has strong ties here. "My dad's 82 years old," he says, "and he depends a lot on me. And I don't want to leave my (adult) children. We've got some grandkids. All that stuff would be tough."

But, "If that's what the courts rule, we'll go (to Mexico)," he says. "Maybe that's where God wants us."

The children, Seliza and Daniel, who both attend Community Christian Academy in Taylor Mill, say it would be difficult adapting to a different culture.

"I'm really scared to move to Mexico," says Seliza, an eighth-grader. "I know the language, but I don't know enough to go to school there, and I don't want to leave because all my friends are here and I'll miss them a lot."

When Seliza and Daniel explained the situation to their teachers, "they all started crying," Seliza says. "And we all prayed."

That's the one thing she knows she can do. "Pray. Pray a lot. God's the only one who can change everything."

E-mail jjohnston@enquirer.com