Noncitizens with criminal records have little recourse

from: SignOnSanDiego,com

Foreign adoptees try to avoid deportation
By Leslie Berestein

September 13, 2005

UNION-TRIBUNE STAFF WRITER
The first time Jess Mustanich learned what a pupusa  was, he was sitting with fellow inmates at an immigration detention facility, waiting to be deported to El Salvador.

Although he was born there, he has never tasted the stuffed corncakes that are the national snack. He doesn't follow soccer. He has never spoken Spanish.

Mustanich, 27, grew up in San Jose as the child of middle-class American parents who adopted him from a convent in El Salvador when he was 6 months old. Now, unless an appeals court rules in his favor, he must go back.

An immigration judge ruled last year that Mustanich, who landed in prison as a teenager after he and a group of friends burglarized his father's house, should be deported. Although he was brought into the country legally by his adoptive parents, both U.S. citizens, he was never made a citizen. He is considered a legal resident, making him as deportable as any noncitizen who commits a crime.

"I never thought I could be returned," said Mustanich, a soft-spoken, 5-foot-tall man who looks like a schoolboy. "It never occurred to me once."

And it never occurred to his adoptive father, who says he tried to naturalize his son but was never successful.

As 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. A 47-year-old man who was adopted as an infant from Japan and has spent his life in the Los Angeles area also is in custody there, appealing a decision to deport him to his birth country for criminal convictions.

It is a rare occurrence, immigration officials say, but foreign adoptees are sometimes deported. In almost every case, the adopted child's naturalization was never completed and, as an adult, he or she was convicted of a crime.

In recent years, as more Americans adopt foreign babies, immigration laws pertaining to adoptions have been relaxed. The Child Citizenship Act of 2000 made citizenship virtually automatic for most adopted children brought into the country. But the law doesn't apply retroactively.

At the same time, two laws that took effect in 1996 have made it easier to deport noncitizens, eliminating most forms of relief for legal residents with a felony conviction. Even certain misdemeanor convictions are grounds for deportation.

Robin Carr, the San Diego immigration attorney representing Mustanich, believes immigration officials could have exercised prosecutorial discretion. But rules are rules, those officials contend.

"The agency certainly recognizes the fact that there is a sympathetic situation here," said Lauren Mack, a spokeswoman for U.S. Immigration and Customs Enforcement. "But that does not outweigh the seriousness behind his criminal history, and the possibility that he could continue to commit other crimes in the United States."

More than 150,000 people were formally deported in the year that ended Sept. 30, 2004. Less than 20 percent of deportation cases involve legal residents. Among those, many entered the country as minors. Those who are children of immigrants face a struggle in native countries they are only vaguely familiar with, where they speak little of the language and can lack close family ties.

The hardship is even greater for adoptees who are raised as Americans with no connection to their birth country. Some don't realize they aren't citizens until an immigration officer tells them.

"He was raised as a middle-class white kid," said Bill Mustanich, 58, who fears for his son's safety if he's sent to El Salvador. "He doesn't speak Spanish. He is a target for the gangs. He is a target to be kidnapped as soon as someone finds out that his father is an American. All the awful things you can think of, he is subject to there."

Never finalized

Bill and his then-wife, Joan, had endured two miscarriages before they adopted three children, first two girls – one born in the United States and the other in Guatemala – and finally Jess. Bill said they adopted Jess under Salvadoran law before bringing him home in early 1979.

The next step was to readopt Jess under U.S. law, but the couple divorced before following through. After a long custody battle, Bill was awarded custody of his son, while his ex-wife kept the girls. By then, Jess was 5. His father employed a family law attorney to help him finalize the adoption and look into the boy's naturalization.

"I kept trying to make him a citizen," said Bill, who works as a school adviser in San Jose for teens with gang and drug problems. "My intent was for him to be an American citizen, and I've tried to do that since he was 5 years old."

But the attorney, Joan Pfeifer, said she ran into roadblocks. The agency that had helped the couple adopt Jess was no longer operating. Laws had changed. In the end, the adoption was never finalized.

Bill said he took a completed citizenship application to the Immigration and Naturalization Service office in San Jose, but a clerk refused to take it and gave him a number to call instead. He said he left repeated messages, but no one called back.

Meanwhile, his son had begun acting out. He had disciplinary problems in school and began stealing from other children. He was in and out of counseling. Playing with matches at age 11, Jess set the yard on fire, prompting his father to get inpatient psychological treatment for him.

Soon afterward, Jess began living in group homes. Since his adoption was never finalized in the United States, Bill had no legal authority over Jess, who by his early teens was getting into trouble with the law. He began experimenting with alcohol and drugs in his midteens.

Bill said he repeatedly asked judges and social workers in the juvenile justice system to resolve Jess' citizenship, but it never happened.

Jess and his father stayed in close contact, and Jess visited often. Shortly after Jess turned 18, Bill came home one day to find his house burglarized. He knew it was Jess. Without thinking of the consequences, he called the police.

"I did it because Jess needed to be stopped," Bill said. "I knew it was going to get worse, and I had a responsibility as his father to stop him."

He had no idea it could lead to his son being deported.

Jess Mustanich was convicted of residential burglary in April 1997. Exactly a year earlier, the Antiterrorism and Effective Death Penalty Act of 1996 had taken effect, eliminating most legal relief for people facing deportation after being convicted of a crime. A second law passed in 1996 reclassified his burglary offense as an aggravated felony and made it easier to deport him.

Mustanich received an additional four-year sentence for possessing a homemade knife while at San Quentin State Prison, something he said he had to protect himself from older, bigger inmates. In July 2003, when his sentence was up, he was released into the custody of Immigration and Custom Enforcement.

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.

"How am I going to explain to the police that my tattoos aren't what they think they are?" said Mustanich, whose greatest exposure to Spanish has been while in immigration custody.

Carr, his attorney, tried unsuccessfully to stay his deportation by arguing that he could be tortured or killed. She's also concerned about his lack of job skills because he has been locked up since he was 18.

"There is a real question as to how he is going to be self-sufficient, even if he were to be released in the U.S.," Carr said. "I don't see him surviving there for very long." 

Potential dangers

That Mustanich would be in danger if he is deported is something that Jim Herbert, whose adopted son was murdered last year in Brazil, doesn't doubt.

Joao Herbert was 18 when he was arrested for selling marijuana in Ohio. He was later convicted. In 2000, he was deported at age 22. He was shot dead, supposedly by drug dealers, though the circumstances remain unclear.

"Once they are American, once they have been here, they have ways about them that irritate other people," said Herbert, 60, who said his son was robbed several times in Brazil. "I sent him money just to survive, so he always had money. In Third World countries, that is a no-no. They will take everything you've got, or come after you some other way."

Carr is now appealing to members of Congress for private legislation, a last-ditch recourse that has helped in some deportation cases. Meanwhile, Mustanich's case is pending in the 9th Circuit Court of Appeals. A decision is expected late this year.

The court soon will weigh a similar case involving Alejandro Ebron, who was adopted from a family in Yokohama, Japan, by a Navy sailor and brought to the United States in 1959, when he was a year old.

Unlike Mustanich, Ebron has an advantage in that his adoptive parents filed citizenship papers for him and were granted a hearing in 1961. The day of the hearing, his father was at sea, so he and his mother went on their own. According to his court case, his mother was informed that her husband needed to be present, information that Ebron's attorney says was incorrect.

Ebron's naturalization fell through the cracks after that. His father spent several years in Vietnam, and by the time he returned in 1970, Ebron's mother was seriously ill. But because his paperwork was filed, there is a chance Ebron could be considered a national of the United States, even if he isn't a citizen.

"It was the Immigration and Naturalization Service that stopped the process from being finished," said his attorney, Allen Ides, who is based in Los Angeles. "Our position is that they were wrong."

A court decision is expected in the spring. To his disadvantage, Ebron has a string of convictions stemming from a longtime heroin habit, the most recent a shoplifting conviction from 2000. He said his drug dependency cost him his marriage and two children, and he remains estranged from his family.

His adoptive parents have died, leaving him with few family members here. But still, he said, he has no business going to Japan, where he knows no one.

"I grew up thinking I was half Filipino and half Mexican," Ebron said. "They could send me to Mexico and I would get by. I can speak a little Spanish. But Japan? I'm going to be in trouble if they send me there."

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