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Pro bono lawyers have intervened on behalf of a Canadian Amish man in danger of being exiled from the United States because he refused to submit a photograph with his immigration application. Lawyers in the Pittsburgh and Philadelphia offices of Reed Smith have engaged in a tug of war with the Department of Homeland Security (DHS) to up-hold the man’s religious freedom while the agency stands on national security concerns in its decision to deny a waiver. In July 2001, the man, known only as John Doe in legal proceedings, filed for permanent residency following his marriage to a U.S. citizen. After months of administrative paperwork and an interview with Immigration and Naturalization Service (INS) officials at their home in Clarion County, Pa., the couple had only to submit photographs to secure John Doe’s legal status in the country. That is when all their problems began. No ‘graven images’ The 29-year-old Amish man is a member of the Old Order Amish, who literally interpret the biblical law against “graven images.” The sect’s view about self images is a 500-year-old belief that stems from religious doctrines about pride and humility, according to Mark Knapp, the leading Reed Smith lawyer on the case. Knapp asked a federal judge last week to grant a temporary restraining order to halt the removal proceedings against Doe pending the outcome of his case. Doe has a 15-month-old daughter. Doe v. U.S., No. 040518 (W.D. Pa.). The government has until April 12 to file an answer. Mary Beth Buchanan, the U.S. attorney for the Western District of Pennsylvania, is handling the government’s response. She was not available, and calls to Assistant U.S. Attorney Al Schollaert were not returned. Several months ago, the Amish man returned to Canada after his father became severely ill. While attempting to return in January, he was stopped by the U.S. Border Patrol and denied entry. Knapp has twice traveled to Canada to meet with the man and speak with border patrol agents since Reed Smith took on the case three weeks ago. On April 1, border patrol agents relented and allowed John Doe to enter the country, only so that he could appear at his removal hearing on April 6. In correspondence, DHS has cited national security concerns as the reason for denying the Amish man’s request for a waiver of a photograph. A Feb. 10, 2003, letter from the Department of Justice to Representative Joseph R. Pitts, R-Pa., who interceded on Doe’s behalf, stated, “Heightened security concerns have caused the INS to greatly reduce the number of waivers or exceptions that are available for administrative procedure.” Knapp concedes the need for solid national security measures, but said his client is willing to provide fingerprints, palm prints, retina scans or other identification in lieu of a photograph. “There are other means by which to ensure the identity of this individual when he enters the country that [do] not require him to violate his religious tenets.” But the government does not consider fingerprints as useful as photographs, according to Margaret D. Stock, assistant professor at the U.S. Military Academy in West Point, N.Y. Border agents cannot always check a fingerprint on a green card against the prints of the person standing before them, said Stock, who on April 1 testified before the Senate on the relationship between immigration and national security. Since 9/11, immigration authorities are less willing to make exceptions for unusual cases. “[DHS officials] are enforcing their rules because they enforce the rules against everyone these days,” said Stock. While Doe’s lawyers assert claims under the Religious Freedom Restoration Act, Stock expects that the court will not take up the issue of the act’s constitutionality because they have avoided it where federal regulations are at issue. Courts have always made exceptions for the Amish in the past, but Stock said it is likely that this time they may hold that requiring a photograph meets a compelling government interest of ensuring identity and is the least restrictive means to achieve that interest.

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