Relates to:
Date: 2000-06-16

Marilyn Miller
Akron Beacon Journal

Joao Herbert, a 22-year-old Brazilian native, has lived in Wadsworth since he was 8 years old. But he wasn't surprised when an immigration judge ordered him deported back to his homeland yesterday.

Herbert sat expressionless, listening attentively to Judge Elizabeth A. Hacker in a Cleveland federal courtroom. Even after the decision, a handcuffed Herbert headed back to a North Royalton jail with a nonchalant look.

Herbert was convicted of drug trafficking in 1998, which violated a 1996 Anti-Terrorist Act stating that anyone not a U.S. citizen and convicted of almost any felony would be deported. He can not return to the United States without the permission of the attorney general and could face federal criminal charges if he violates the order.

"This is a lifetime bar, sir," Hacker told Herbert. "If found in the United States without permission of the attorney general, you will be subject to prosecution for unlawful re-entry."

Herbert was adopted by Nancy Saunders and Jim Herbert from a Brazilian orphanage 14 years ago. His family filed for citizenship, but before the application could be reviewed, he turned 18. The application was returned and his parents were told he was old enough to apply on his own.

However, before he could gain citizenship, Herbert sold marijuana to an undercover policeman in Wadsworth and was convicted of trafficking. He fell under the U.S. immigration law, which stemmed from the bombing in Oklahoma City.

The judge had no choice but to deport Herbert because he offered no reason why he should remain in the United States. Herbert's attorney, Maura O'Neill Jaite, said they were going to try to prove that Brazil is noted for its torture policies, and that Herbert could be penalized for returning to that country.

"He didn't want to pursue it," Jaite said. "He made his own decision."

The Brazilian government has said that it considers Herbert to be an American citizen and does not want to issue travel documents for his return -- unless Herbert requests the travel papers himself.

Herbert's adopted mother, Nancy Saunders, was absent from the hearing. When contacted later, she cried.

"I didn't know about the hearing. I would have been there; I would not have missed it," Saunders said. "He was there all by himself."

Saunders said her son has had a lot of time to think while in jail. "He felt that the cards were already dealt and it didn't make sense to offend a country that he may have to live in. He'd rather be deported than sit in jail the rest of his life."

She said, "We do have a glimmer of hope. We have asked Ohio Gov. Bob Taft to pardon him, which would vacate the conviction and stop deportation. We can't just give up."

Jaite said she will appeal. She has 30 days to file. Herbert will remain in the United States and for now in the North Royalton jail until there is a ruling on the appeal. Herbert has been in jail since Dec. 8.

Jaite said she is also challenging the statute for mandatory detention. That means if a person is ordered deported and the two countries are at a standstill, the dispute could continue for years and he could be jailed for years.

She has asked that Herbert be freed until a decision is made. She has already filed that request in the 6th Circuit Court of Appeals in Cincinnati. Tacked onto that request, also in federal court, Jaite will ask for another bond hearing, since Herbert has been jailed so long.

Mark Hansen, Ohio's district director for the Immigration and Naturalization Service, said last year (fiscal year, Oct. 1, 1998-Sept. 30, 1999) that there were 282 people deported. He said he knows of no other case where a country has refused to accept a native.

"Our office is bound to the task of enforcing it (the law)," Hansen said. "Sometimes we have to make some difficult decisions."


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