'THEY CAN'T TAKE ME. . . CAN THEY?'

Gina Mace and Marilyn Miller

Akron Beacon Journal

Nearly 14 years ago, a promise was made.

A promise that an 8-year-old orphan named Joao would be loved by his adoptive parents. A promise that he would be given the same rights as a child born in the United States.

Nancy Saunders and Jim Herbert made that promise and were allowed to take Joao home to Wadsworth from the orphanage where he lived in Sao Paulo, Brazil.

They kept their promise to love him. But they could not give Joao the rights of an American child.

That promise was not theirs to make.

So, when Joao broke the law, his sentence wasn't just a stay in jail. It was permanent separation from his family and the life he had come to know.

Two years ago, Joao Herbert was caught selling drugs, his first offense. Under a 1996 law, passed in the wake of the Oklahoma bombing, any noncitizen convicted of all but the most minor offenses is subject to detention and mandatory deportation. The law was designed to go after foreign criminals, but it made no exception for foreign-born adoptees like Joao.

Today Joao (pronounced Ja-Wone) waits in the Medina County Jail for a hearing in March before a federal immigration judge who will order him back to the country of his birth.

"I want to be able to go on with my life," Joao says. "I want to go to school and learn a trade in electronics."

Twice a week, Saunders sits in the jail visitors' area, separated from her 21-year-old son by a pane of glass. They talk by telephone, and she tries to explain to Joao why the U.S. Immigration and Naturalization Service can tear him away from the only family he knows and send him back to a country he doesn't remember.

"He says, 'I'm yours, right? They can't take me from you, can they? Show them the adoption papers,' " Saunders says.

Jim Herbert spends his days working the telephone and the Internet, trying to find a way to stop the deportation. A paraplegic who has been in a wheelchair since a 1996 accident, he knows that if his son is returned to Brazil, he will never see him again. The country isn't wheelchair-accessible.

"There has to be someone out there who has the answer to stopping this thing," Herbert says.

Rubens Barbosa, Brazil's ambassador to the United States, is trying to stop it. He will not honor a request his office received last week from the U.S. government for traveling papers for Joao Herbert.

Barbosa says that when a Brazilian child is adopted, he is recognized under the law to be the natural-born child of the adoptive couple.

"In the eyes of Brazil, Joao Herbert is an American," he says. "Adoption is irrevocable. According to our legislation, he has the same rights as other children in the family. I am informing the American authorities that Brazil will not take him back."

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PERMANENT BANISHMENT

The nightmare for Joao Herbert and his family began on Aug. 21, 1997, when he was arrested, along with two fellow graduates of Wadsworth High School, for selling 7 1/2 ounces of marijuana to an undercover Wadsworth police officer. All three pleaded guilty to the drug charges.

Medina County Common Pleas Judge James Kimbler sentenced the young men to probation, and Joao Herbert entered a court-ordered residential drug-treatment program.

At the time, Joao had an application for citizenship pending, but the lengthy process wasn't completed. Because he was a legal permanent resident, and not a U.S. citizen, his conviction made him eligible for deportation under the 1996 law.

Nancy Saunders and Jim Herbert expected their son to be punished for selling drugs. What they didn't expect was for him to receive a sentence of permanent banishment.

"He did wrong," Saunders says. "No one is harder on him than I am about that. But I believed in the system."

Jim Herbert thinks his son deserves a second chance.

"I always thought you got deported if you were a threat to the country or a Colombian drug lord," he says. "This is just a kid who messed up."

Barbosa also thinks Joao's punishment is too harsh. Joao doesn't speak Portuguese, the language of Brazil, and has no friends or relatives in that country.

"What would he do?" the ambassador asks. "It would be inhumane to send him back. And what is most important is that his parents want him to stay here."

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IRONIC CIRCUMSTANCES

Besides leaving his parents, Joao also would be separated from his sister and brother if he were deported.

Nancy Saunders was a single parent to daughter Erica and trying to adopt a child from Brazil when she married Jim Herbert in 1980. He shared her desire to add children to their family.

In 1986 Saunders traveled to Sao Paulo to pick up Joao. Two years later, Saunders and Herbert adopted another Brazilian boy named Dan. The couple has since divorced.

Saunders says going to Brazil to pick up her sons was the easy part of foreign adoptions, which can be bogged down and blocked by red tape. Waiting to find out whether she would be allowed to bring the children home with her was heart-stopping.

"You don't know if he's going to get on the plane with you until you get to the airport at midnight for the return flight," she says. "They give you a sealed envelope that's opened by authorities at the airport. In the envelope it says whether he can board the plane or not."

She sees the irony in the way her sons left Brazil and the way Joao Herbert could return.

"If he has to go back, they won't tell us when he's going or where they're going to take him," she says.

Mark Hansen, Ohio's district director for the Immigration and Naturalization Service, confirms Saunders' explanation.

When a person is deported, the INS obtains travel documents, arranges a flight and escorts the person back to the country and releases him or her to authorities. For security reasons, family members are not contacted, nor are they told when and where the person is being deported.

"He'll go back the same way he came in," Saunders says. "In secret."

If Brazil blocks the deportation, as Barbosa says it will, that may only delay the inevitable. Hansen says Joao Herbert could remain indefinitely in federal custody while the government decides what to do next.

"The government would explore the possibility of sending him to another country," Hansen says.

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'INCREDIBLY HARSH' LAWS

Professor Nancy Morawetz, who runs the Immigrants Rights Clinic at New York University School of Law, says Joao's March hearing is just a formality.

"The immigration judges work for the attorney general," she says. "They don't have the power to weigh inequities. The judge will look at the conviction and will order him deported."

Morawetz says that once the INS orders someone deported under the 1996 law -- titled the Immigration Reform and Immigrant Responsibility Act -- there is no right to judicial review of the case. An appeal only can be made based on the constitutionality of the law, not on the facts of the case.

"The law is incredibly harsh," she says. "These children are brought here as family members. The ultimate rejection is to be sent back to countries they might not remember."

Before 1996, a noncitizen would have to be convicted of a crime like murder, rape or serious drug charges and spend at least five years in prison before being eligible for deportation. Since 1996, even some misdemeanors, like minor assault charges, are deportable offenses.

The 1996 law "was passed without anybody thinking about what it was going to do," Morawetz says.

Lucas Guttentag, of San Francisco, is director of the American Civil Liberties Union National Immigrants Rights Project. He and his staff have been challenging the law in court, especially portions dealing with the deportation of legal permanent residents who committed crimes before the law was enacted and those detained indefinitely because their birth countries won't take them back.

Guttentag says Joao Herbert's plight is yet another example of why this law is such a tragedy.

"I challenge any member of Congress who voted for this law to support this result," he says. "It's a sad comment that a 6-year-old boy in Miami is being sponsored for citizenship by members of Congress who turn a cold shoulder to (Joao Herbert), who has been living here for a number of years and who made a single mistake."

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PLAYING POLITICS

Pam Gaul, a Florida woman whose adopted son was deported to Thailand last year after being convicted of auto theft and passing bad checks, says she understands why Elian Gonzalez, the Cuban boy to whom Guttentag refers, is a popular cause while a bill introduced in 1998 by Louisiana Sen. Mary Landrieu died in committee.

The bill would have amended the 1996 law to exempt adopted orphans like her son and Joao Herbert.

"Because there's a big voting block in the Cuban community, you will find empathy by members of Congress," Gaul says. "We're single families standing alone. We don't offer a politician any power."

That's something Jim Herbert is discovering. As soon as he discovered that his son could be deported, he contacted the office of U.S. Rep. Sherrod Brown, D-Lorain, whose congressional district includes Medina County, for help.

Two weeks ago, when Brown's office discovered that both Jim Herbert and Nancy Saunders recently had moved from Wadsworth to Wayne County -- he to Orrville, she to Marshallville -- information on the case was turned over to U.S. Rep. Ralph Regula, R-Navarre.

An aide in Regula's office told Jim Herbert there was nothing the congressman could do to help Joao.

Neither Brown nor Regula would comment for this article.

U.S. Sen. Mike DeWine, R-Ohio, is co-sponsor of a bill that would bestow automatic citizenship on children adopted by Americans.

The bill wouldn't help Joao Herbert or John Gaul, but, if passed, it would help those adopted in the future.

DeWine says that there is no pending legislation that would amend any aspect of the 1996 law.

Jim Herbert and Nancy Saunders have been drained emotionally and financially in fighting to keep their son in the United States.

That's something Pam Gaul can relate to, but she urges them to keep fighting.

"If you can buy a couple of years, maybe some of the laws will be repealed," she says.

If they can't buy those years, Nancy Saunders won't say a final goodbye to her Joao.

"I'll be making one last trip to Brazil," she says. "I'll find him."