Noncitizens with criminal records have little recourse

from: SignOnSanDiego,com

Foreign adoptees try to avoid deportation
By Leslie Berestein

September 13, 2005

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.comSeptember 13, 2005


Transracial Adoptees Facing Possible Deportation/Immigration


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.

“…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.

Pound Pup Legacy