A Canadian Amish man will cite the First Amendment in his fight to stay in the United States without having to submit to the immigration photo that he maintains would violate his strict religious beliefs, his attorney says.
Daniel Zehr of Kitchener, Ont., who is living in the Amish community in Clarion County, is now considered to be legally on American soil, said Mark Knapp, a Reed Smith immigration attorney who is representing Zehr for free.
That means Zehr can make freedom of religion arguments not available to him eight months ago, when a judge threw out his federal lawsuit, Knapp said.
"We're still fighting the same battle we were then, but now he's here with his wife and kids - legally," Knapp said. Zehr married an American woman in June 2001.
Zehr, 29, is a Canadian citizen and a member an Old Order Amish sect that takes literally the Bible's prohibition of graven images, which is why he won't consent to the immigration photo.
The U.S. Immigration and Naturalization Service, forerunner of the Citizenship and Immigration Service created last year as part of the Department of Homeland Security, sometimes allowed immigrants to waive the photo requirements for religious reasons. No exceptions are made now due to anti-terrorism efforts.
Senior U.S. District Judge Alan Bloch refused in April to consider Zehr's religious freedom argument because Zehr was then in the country on something known as parole status. Under a little-known rule dubbed the "entry-fiction doctrine," a foreigner on parole status is still considered to be on the other side of the border and does not have the same constitutional rights as citizens and certain other immigrants.
U.S. Attorney Mary Beth Buchanan, who defended the government in April, said she couldn't comment on Zehr's legal plans unless and until he files another lawsuit challenging the photograph provision. But Buchanan said the country has a "compelling national security interest" in getting immigration photos.
To avoid a repeat of Bloch's decision, Knapp has since managed to get Zehr a six-month visitor's visa, which expired Monday, but in the meantime Zehr and his wife applied for a green card to make him a legal immigrant. Zehr is now in the country on what's called "adjustee" status which, Knapp said, means he can make the religious freedom argument - assuming that his case ends up in court again. Adjustee status applies to any alien who is in the country legally and seeking to change his or her immigration status - in this case from visitor to resident alien.
After the holidays, Zehr will be required to meet with immigration officials, be fingerprinted and photographed. What happens then depends on what immigration officials do if he again refuses to be photographed, but another federal lawsuit is likely, Knapp said.
Zehr declined to be interviewed and officials with the Citizenship and Immigration Service said they didn't know enough about his new application to comment on it.
Knapp said Zehr understands the government's security concerns, and is willing to be fingerprinted and have his retinas scanned for security purposes.
Buchanan said Homeland Security officials can't do a thorough background check on Zehr - or any other immigrant - without a photo.
"They can't go out and show people a fingerprint and say, 'Do you recognize this fingerprint? What can you tell me about this person?' " Buchanan said.