ADOPTEE IS CLOSER TO BEING DEPORTED

Marilyn Miller

Akron Beacon Journal

Wadsworth adoptee Joao Herbert is one step closer today to being deported to Brazil, the country where he was born.

Federal Immigration Judge Elizabeth A. Hacker ruled yesterday that Herbert, 22, could be deported because he was not a U.S. citizen and he had been convicted of drug trafficking, an aggravated felony.

But Hacker then gave Herbert's attorney until May 26 to file an "application for relief," listing reasons why the deportation should not take place, and she set a hearing on that application for June 15. Herbert is being held in a North Royalton jail until the deportation case is settled.

In 1996, U.S. immigration law was changed to state that anyone not a citizen and convicted of almost any felony would be deported back to his or her native country. Herbert, who was adopted from a Brazilian orphanage by a Wadsworth couple when he was 8 years old, was convicted in 1998 of selling marijuana.

At yesterday's hearing, U.S. assistant attorney G. Michael Wick produced a certified copy of Herbert's conviction on the drug charge and his visa, which identifies him as a resident alien.

When the defense was asked for any proof of Herbert's citizenship, attorney Maura O'Neill Jaite, could only provide an application for citizenship filed by the family on Jan. 18, 1996, when Herbert was 17. But by the time the application got to the Immigration and Naturalization Service four months later, it was denied because Herbert had turned 18. The family was told that Herbert was old enough to apply on his own -- something he then failed to do.

Though Wick told the judge that the INS wanted Herbert deported to Brazil, there is an obstacle to doing so.

The Brazilian government has said that it considers Herbert an American citizen and that travel documents for his return to Brazil would not be issued.

Renato Moska, press attache to Brazilian ambassador Rubens Barbosa, said yesterday that the situation has not changed and travel documents would only be issued if Herbert requested them himself.

"After the adoption, he became American," Moska said.

Jaite said that in her filing for an application for relief she will try to prove that Brazil is noted for its torture policies and that Herbert could be penalized for returning to that country.

Herbert's mother, Nancy Saunders, said she still has to come to grips with the fact that she may lose her son.

"The reality of deportation," she said, "is always in the back of my mind. . . .

"When I would visit him in jail, we would treat every visit as if it was our last. We would always make sure we said everything we needed to say to each other just in case it was the last time we would see each other."