Could the face your parents gave you put you in prison?

from: kadnexus.wordpress.com

Many Transracial Adoptees Facing Possible Deportation/Immigration Detention

(Thanks to the K@W listserv for the heads up on the links cited at the end)

“Talk to Dan Heiskala on the phone, and one would never know he isn’t an American citizen. He grew up in Michigan, the son of an engineer and a nurse. He is an adopted son, however. On sight, one might guess Heiskala isn’t a citizen — he has Asian features — but with his swoosh baseball cap and business card announcing him as the proprietor of a tavern in Massachusetts, he still comes off no differently than any other native born adult.”

Transracial adoptees (TRAs) continue to be cast as perpetual foreigners such as the excerpt above taken from the Hartford Advocate. The dominant TRA discourse colorblindly denies that TRAs exist as people of color, yet contradictorily confirms it through racialized normative “Americanality” that questions issues of citizenship on the basis of race. This fact alone has historically caused quite a lot pain for TRAs who constantly struggle to show that they are just as “American” as white America, while also having to push through these colorblind assumptions to assert their American/POC duality. So it makes it quite difficult when many adoptees are indeed, non-citizens in the U.S.

Dan Heiskala, a TRA Korean Adoptee (KAD) from Michigan is fighting this very battle. Born in 1968 Dan Heiskala is one of approximately 200,000 KADs that have come to the United States since the Korean War in the 1950s. He was adopted at the age of 5, yet was never naturalized as a citizen by his a-parents (Adoptive Parents). His legal battle over his illegal status began in 1992 when he was convicted of stealing a truck which he alleges was false. Per counseled instruction, he did not testify on his behalf and was found guilty by trial resulting in a 7-10 year sentence. He was let off after around 2 years of prison.

The real struggle came, when in 1996 congress enacted a law that essentially deports all non-citizens for criminal records where they are sentenced to 1 year or more of prison time. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA-96), “Virtually all criminal aliens must be detained when they are released from criminal custody. The effective date for this section is April 1, 1997.”

“…A single “removal” hearing in place of the current separate deportation and exclusion hearings is established. This section also imposes new restrictions on voluntary departure. The maximum period for voluntary departure of an alien in removal proceedings, is now 120 days, which is shorter than the old period in deportations proceedings. This section takes effect on April 1, 1997.”

Had Heiskala been adopted after 2000, the complications of his legal status would have never been questioned. According to the Child Citizen Act of 2000, international adoptees are granted automatic acquisition of citizenship. The law stipulates that, “children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired:

“Sec. 320. (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

“(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

“(2) The child is under the age of eighteen years.

“(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence. . . .”

But due to a major loophole in the legislation had Heiskala plead guilty he may have avoided deportation. According to the Hartford Advocate, “The logic is that the person must have taken their immigration consequences into consideration when they made the deal, attorney Martel says, meaning the deal — to plead guilty to avoid deportation — should be honored. But if a person went to trial, then they somehow waived their right to address their immigration status now.”

Heiskala attempted to stay to himself, opening his own restaurant in 2003. But it all came crashing down when he was pulled over for expired registration and charged for a DUI since he was still on probation. Heiskala says he missed the DMV by an hour that day, and that’s when immigration stepped in.

Heiskala is not alone as one of many transracial Korean adoptees, who are increasingly being scrutinized for their illegal status in the United States. A 30 year old TRA KAD named Jang from Pennsylvania is also facing impending deportation for his criminal record.

Similarly, TRA Indian American adoptee Samuel Jonathon Schultz has also faced an uphill battle. Schultz’ criminal record combined with un-naturalized status by his a-parents have landed him a chance at being deported back to his motherland of India. Schultz is not only unfamiliar with the language and culture, but claims that his Mormon background will cause him to be religiously persecuted if he is to be deported.

But while these TRA Asian Americans seem to represent a majority of the cases emerging, they are not alone as TRA people of color. Jess Mustanich, the now 27 year old El Salvadoran adoptee was adopted by his a-parents when he was only 6 months old.

Jess Mustanich

“…Mustanich awaits his fate at the Homeland Security Department’s detention facility in Otay Mesa, where he has been for two years, he isn’t alone in his predicament.”

Mustanich’s situation is also a result of his criminal record. After burglarizing his father’s house as a teenager, he and his friends landed themselves in jail. But now the sheer fact that his father was unable to attain citizenship for Mustanich as a boy will result in him being deported. Jess worries that his tattoos will inadvertently cast him as a gangster if he is to return to his motherland in El Salvador. Jess’ father Bill looks back on his inability to gain citizenship for his son and feels a deep sense of remorse. Jess had been adopted under Salvadoran law and was brought back to the U.S. prior to his father readopting him in the U.S. in 1979. A series of unfortunate events starting with Bill’s divorce and a messy custody battle lagged the process which should have been carried out shortly after Jess’ arrival in the U.S. By the time Jess was 5, his father had finally been awarded custody but things did not get easier from there. Jess struggled in school as a teen and was frequently caught for gang and drug problems as he got older further stalling his citizenship papers which his father worked furiously on with a lawyer.

Detained in the Otay Mesa facility, Jess crafted a homemade knife to protect himself from other inmates which subsequently was confiscated, and added an additional 4 years onto his sentence. When he was released from the custody of ICE in 2003 he faced deportation due to the same 1997 law that many of the adoptees above had encountered.

“At the detention facility in Otay Mesa, officers refer to him not as Mustanich but as Alfaro. His otherwise-unknown biological mother is listed as Olivia Alfaro on his birth certificate. “I think what the government has tried to do is strip him of his American, Anglo identity,” his father said. “I think they have taken ‘Mustanich’ away because they don’t want a Mustanich being deported to El Salvador. What a horrible thing it would look like if he turned up dead.” The younger Mustanich, who has several tattoos – including the name “Olivia” on his stomach – worries that he will be taken for a gang member by police and put in jail, or worse, for a rival by members of El Salvador’s notorious gangs, some of whom are deportees themselves.”

Joao Herbert, a Brazilian adoptee was deported in 2000 at the age of 22 for selling marijuana in Ohio was shot dead in Brazil by drug dealers (the details remain a mystery). In a similar case Alehandro Ebron, an adoptee from Yokohama, Japan was adopted in 1959 when he was a year old. His citizenship fell through the cracks due to a series of miscommunications by his a-parents who failed to show up to his citizenship hearings. Due to his long standing record of heroin use, and a fresh shoplifting conviction in 2000, Ebron like so many other TRAs is facing possible deportation.

The complications however, continue for the many TRAs who face deportation to countries who do not accept deported nationals. In fact South Korea currently refuses to accept adoptees back into the country which means people like Heiskala face an indefinite sentence in American immigration jail. Korea is not alone in being one of a few countries who do not accept deportees, but the thought of immigration jail makes one’s identity as a TRA that much more complex. As many TRAs can attest to, our identity is a constant duality of “Americanness” from our American, predominantly Caucasian a-parents, and an unbelievably strong pull to be a part of our motherland cultures. But the fact remains that we are not part of our motherland culture, raised in America we are forced to acknowledge our constant status (as one of my favorite TRA books claims), “Outsiders Within.

While the 2000 adoption legislation marks a historic period where adoptee immigrants gain automatic citizenship in the U.S., thousands more who were adopted before 2000, who’ve faced criminal charges are facing deportation to countries they are unfamiliar with and could potentially put them at peril. At the heart of it all is their a-parents inability to gain citizenship for them-the circumstances varying from general neglect/absent-mindedness, a-agency complications, to lack of financial resources etc. These adoptees are facing uncharted territories as immigrants, people of color, and perpetual foreigners in their birth countries, and now, even more so in their a-countries. As I had alluded to before, the outcome of many of these court proceedings has the potential to drive an even deeper wedge between immigrants if these adoptees are allowed to stay in the country. I suppose we’ll just have to see how politicians and law-makers decide to handle these cases.

Articles Cited

http://www.signonsandiego.com/uniontrib/20050913/news_1n13adopt.html

http://english.chosun.com/w21data/html/news/200105/200105210181.html

http://hartfordadvocate.com/gbase/News/content?oid=oid:54321 ?

http://www.takatalaw.com/index.html

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Authenticity of Documentation

This article really hit-home for me because I didn't learn how many problems arise for an adoptee until one wants to leave the country of life-time residence, and apply for a passport.

I would not want to wish that humilating hell on anyone.

I'm lucky, because I am white, very average looking, and have no criminal record what-so-ever.  But back in the daze of immortal youth and crazy college-age drinking, it was a matter of luck I never got stuck with a DUI.

I can only hope an article like above will start chinking away at the isolating walls that keep the international adoptee away from thinking that radical adoption reform could actually benefit EVERYONE, not just Americans seeking an original American Birth Record.  Yes, Adoptee Issues are global in size.  There are so many not nearly as lucky as me.... so please take a moment and think where so many adoptees are ending-up because there is no safe-place left to live:  Prison.

Please visit our Rates of Incarceration page, and see how your own home-land rates in terms of "criminal population", and ask yourself, "How many of those inmates are fostered/adopted adults?"

This all makes me think:  ARE some born more lucky than others, or are some simply put in the wrong hands of an adult powered by the wrong influence?

 

Deportation cases

Since this topic requires much more attention, we set up a list of Deportation cases, in which we aim to cover as many cases we can find.

Burglary conviction leads to deportation

from: signonsandiego.com

July 20, 2008
Leslie Berestein
UNION-TRIBUNE STAFF WRITER

A man adopted by a U.S. couple when he was 6 months old has been deported to El Salvador after spending five years in immigration detention in Otay Mesa while he appealed his case.

Jess Mustanich, 29, arrived in El Salvador on July 10 after losing his appeal to the 9th U.S. Circuit Court of Appeals last spring, a proceeding that stemmed from a burglary conviction 11 years ago. Described by his father as “a middle-class white kid” raised in an Anglo household, Mustanich learned a handful of Spanish words from Latino detainees while in immigration detention, but is otherwise starting over as a stranger in a strange land.

Speaking by phone Friday from a San Salvador hotel, he described going through customs at the airport.

“They brought out some guy, and he asked, 'Why don't you speak Spanish?' ” Mustanich said. “I told him it was because I was adopted, and he said, 'Then why are you here?' ”

Mustanich's case is rare. But foreign adoptees occasionally land in deportation proceedings, according to U.S. Immigration and Customs Enforcement, usually after getting into trouble with the law and learning that their parents, who brought them into the United States legally, did not complete the process of making them citizens.

Not long ago, ICE deported another foreign adoptee held in San Diego, a man adopted in 1959 from Japan when he was 1. While a 2000 law made citizenship virtually automatic for most adopted children brought into the United States, it doesn't apply retroactively.

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Mustanich landed in prison as a teenager after he and some friends burglarized his father's house. His father, hoping to scare him straight, called the police. Jess Mustanich's resulting conviction for residential burglary set in motion a series of events that his father did not imagine.

“I was trying to do the right thing for my kid,” said Bill Mustanich, 61, of San Jose. “Every time I think about this, I think about throwing up. What am I going to do about him now?”

Bill Mustanich, who recently retired from his job as a school adviser for troubled teens, said he tried on several occasions to naturalize his son. He and his wife adopted their son under Salvadoran law through an agency in 1979; the couple divorced before they followed through on naturalizing Jess.

After the dust settled, Bill Mustanich hired a family law attorney to complete the process; his son was about 5. The attorney ran into roadblocks, including changes in the law and the fact that the adoption agency was no longer in business.

In 1988, with his son in tow, Bill Mustanich took a completed citizenship application to an Immigration and Naturalization Service field office in San Jose, he said, but they were turned away and given a phone number to call. Bill Mustanich said he called several times and left messages, but never received a reply.

Meanwhile, Jess Mustanich was growing up and he began to act out, experimenting with alcohol and drugs and getting into trouble. Shortly after his 18th birthday, Jess Mustanich and several friends who had been stealing from their parents burglarized his father's home. The police were called and, Jess Mustanich was convicted of residential burglary in 1997.

Neither father nor son knew at the time that changes to immigration law enacted the previous year had eliminated most legal relief for legal U.S. residents convicted of a crime.

According to immigration officials, Jess Mustanich matched the definition of a deportable alien, regardless of his adoption background. In 2003, after his release from prison, he was placed in the custody of Immigration and Customs Enforcement to await deportation.

“He had a criminal conviction that made him removable, and our job is to comply with what the judge orders,” said Lauren Mack, an agency spokeswoman in San Diego.

At a hotel now for more than a week, Jess Mustanich isn't sure what to do next. His father can provide financial support, and members of a local branch of the Seventh-day Adventist Church, of which he is a member, have helped get him oriented.

Bill Mustanich, who referred to ICE as “an agency out of control,” plans to travel to El Salvador, though he feels helpless.

“It's a country in turmoil,” he said. “I am terrified about his ability to move around. The whole thing is just appalling.”

Jess Mustanich said he would like to return home one day, but realizes it's unlikely. He recently bought a copy of “The Complete Idiot's Guide to Intermediate Spanish” at a bookstore.

“It's going to take some time,” he said. “Until then, I'm going to have to rely on hand signals.”

Leslie Berestein: (619) 542-4579; leslie.berestein@uniontrib.com

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