A federal judge has refused a request to keep a Canadian Amish man in the United States with his wife and child, who are both American citizens, while he challenges a law requiring his photo be taken for legal residence in the country. Daniel Zehr's attorney, Mark Knapp, filed an emergency appeal Thursday morning of Senior U.S. Judge Alan Bloch's order. Knapp also asked the 3rd U.S. Circuit Court of Appeals to consider an order preventing Zehr's removal from the country while the appeal is pending. It wasn't immediately clear if the court consented to issue the order. Knapp said the appeals court was told by federal immigration officials Wednesday that there were no plans to remove Zehr from the country before the appeal is filed.
Zehr, 29, of Kitchener, Ont., 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. Zehr, his wife, Ruth Anne, 22, and their young child now live in a Clarion County Amish community.
Zehr's attorneys argued that because he is currently in the country, albeit on an immigration parole status, he has a First Amendment right to freedom of religion that allows him to object to having his photo taken. The U.S. Supreme Court has held that resident aliens are protected by the Constitution.
But Bloch agreed with government attorneys that Zehr has no rights. Although Zehr is in the country, a foreigner on parole status is still considered legally to be on the other side of the border - a bizarre legal reality also known as "the entry-fiction doctrine."
"He is outside of the United States right now," Bloch said. "I can't, under these circumstances, order them not to remove him."
The Zehrs married in June 2001 and he entered the United States temporarily as a non-immigrant visitor to live with his wife in Licking Township, Clarion County, about 95 kilometres northeast of Pittsburgh. Daniel Zehr returned to the United States in 2002 on parole status, while he and his wife sought a way around the photo requirement.
U.S. Attorney Mary Beth Buchanan said the photo is crucial to Department of Homeland Security officials who do background checks of anyone seeking alien status or citizenship.
Zehr's attorneys say he's willing to be fingerprinted and that fingerprints are an even better way to confirm a person's identity. But Buchanan said a photo is necessary for federal officials to interview others about the alien's background.
"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. "Without a photo, it will make it much more difficult, if not impossible, for DHS to conduct its investigation."
In December, Zehr ran afoul of immigration authorities when he travelled with his wife and daughter to Canada to visit his father, who had had a heart attack. In January 2004, the family was returning home when Zehr was stopped at the border and told that he had "self-deported" and could not return because he didn't have a photo ID.
On April 1, Zehr was allowed into the United States, again on parole status, until his removal hearing on Tuesday, which was cancelled when government attorneys withdrew their removal petition. Instead, Bloch held a hearing Wednesday to determine whether he'd let Zehr remain in the country while a lawsuit challenging the photo requirement was pending.
Because Zehr's parole status has expired, immigration officials can remove him from the country without warning.