Back to Korea for Adoptee

Relates to:
Date: 2004-02-19

Back to Korea for Adoptee
New immigration laws mean deportation for a man with a criminal record

by Dan Levine - February 19, 2004 Hartford Advocate

DAN LEVINE PHOTO

He's about as American as you and me but Dan Heiskala stands to be deported
because of 1996 immigration laws.

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.

But even though he came to the United States as a toddler, Heiskala is under
immediate threat of deportation back to South Korea. His parents never got him
citizenship, and because he was convicted of a crime in the early 1990s, a
bizarre confluence of legal circumstance means he has little recourse to fight
removal.

"Honestly, I don't know how to say 'hi' in Korean," he says.

Born in 1968, Heiskala's parents adopted him and brought him to the United
States as a 5-year-old. Heiskala had three siblings and nestled into a typical
American childhood.

Being adopted, though, did not mean Heiskala automatically achieved American
citizenship. His parents would have had to proceed through a separate
bureaucratic process, and they didn't do it. His parents wanted to give him the
option of maintaining his Korean heritage, they reasoned.

Heiskala's status in the U.S. wasn't questioned until a 2003 motor vehicle
stop. But his trouble began in 1993 when, Heiskala says, he drove a friend a
ride to a truck that the friend wanted to steal. Heiskala says he never set
foot in the stolen truck, just dropped the friend off. When the police came to
Heiskala and asked about it, he didn't give up the friend. However, police
eventually arrested Heiskala, who pleaded not guilty and took the case to
trial. The friend, Heiskala says, testified against him. On advise of counsel,
he didn't testify on his own behalf and a jury found him guilty. He received a
seven- to 10-year sentence for stealing and burning a motor vehicle.

Heiskala got out of jail in two years and three months, but unbeknownst to him,
his legal nightmare had just begun. In 1996, Congress passed a battery of
immigration laws -- the Immigration Reform Act. Suddenly, felony convictions
could result in deportation for non-citizens, whereas before 1996 the
consequence might not have been as serious, says Mike Martel, an attorney with
Boston-based Ross, Silverman & Levy, who is representing Heiskala. So even
though Heiskala was not deported when he was originally convicted, the 1996
reforms placed him in legal jeopardy.

Had he been adopted today, Heiskala would not have to worry about this outcome.
Following a law that went into effect three years ago, foreign-born children
adopted by American families now automatically become U.S. citizens when they
enter the country.

And get this: Had Heiskala pleaded guilty to stealing the car instead of
demanding a trial, he would be able to escape deportation. This is perhaps the
strangest legal aspect of his case. Under a June 2001 Supreme Court ruling, the
1996 immigration laws cannot be applied retroactively to people who pleaded
guilty to a crime. 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.

By January 2003, Heiskala had opened his own restaurant and stayed out of
trouble. But he was pulled over for driving a vehicle without registration --
he says he missed the DMV that day to register his new car by a matter of
hours. The cop charged him with DUI, and because his parole had not yet
expired, they sent him back to a state prison pending disposition of the case.

And that's when immigration stepped in. Even though the motor vehicle charge
was dismissed, the feds took Heiskala into custody. He is out on bond, awaiting
a court date where a judge could order his deportation.

In the last twist of circumstance, South Korea refuses to accept adopted
children back into its country, so Heiskala may just wind up sitting in an
American immigration jail indefinitely.

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