FOREIGN ADOPTEE FIGHTS DEPORTATION WHILE IN JAIL

ARREST FOR SELLING MARIJUANA PUTS 22-YEAR-OLD ON WRONG SIDE OF LAW PASSED IN 1996 REQUIRING DEPORTATION FOR SUCH CRIMES

TERRY OBLANDER and STEPHANIE SHELDON

The Plain Dealer

Since Joao K. Herbert was 8 years old, he has lived his life as the son of Nancy Saunders and James Herbert.

Adopted from an orphanage in Sao Paolo, Brazil, he grew up in Wadsworth, playing soccer and basketball alongside his Medina County classmates.

Then, two months after graduating from Wadsworth High School, he was arrested for selling 7.5 ounces of marijuana to a police informant. He later fled a drug treatment program because he said he feared he would be deported to a country where he knows no one and can't speak the language.

Because Herbert's parents chose not to seek American citizenship for him, the U.S. government says it has no choice.

A law passed in 1996 took away the Immigration and Naturalization Service's discretion in cases like Herbert's. The law requires people who are not U.S. citizens who are convicted of certain crimes to be deported.

Bills being considered by the U.S. House call for extending automatic citizenship to foreign-born orphans adopted by Americans and softening some of the mandates of the new law. Adoption advocates say it would save time and money for the number of people adopting orphans outside the country, which doubled in the last decade.

If similar laws had been in place when Herbert was adopted in 1986, he probably would have served his six months in a drug rehabilitation program and started his life over - like many other first offenders.

Herbert would have been "deportable" under the old law, said Nancy Morawetz, a law professor at New York University's Immigrants Rights Clinic. But judges also formerly had the latitude to consider family ties and other elements and probably would not have deported him, she said.

But Herbert, 22, sold drugs only a year after Congress passed new laws tightening up immigration regulations. The 1996 law took away immigration judges' discretion.

Cleveland immigration lawyer Margaret Wong has cases pending in federal court in Cleveland that center on the same issue.

The cases are emotional, she said, especially when involving adoptees.

"If they were adopted as babies, the parents think everything is legal - they have their green card and everything else," Wong said. Since naturalization to become a U.S. citizen is not required for adoptions, families often forget to finish the process, she said.

"It's not required, so they say, 'I'll do it tomorrow, I'll do it tomorrow,' and they don't get around to it," Wong said.

James Herbert said yesterday that he and his ex-wife made a conscious decision not to seek American citizenship for Joao or his brother, Daniel, who also was adopted from Brazil.

"Basically, we thought this ought to be a choice by both these boys to be Brazilian or American citizens," Herbert said.

Today, Joao Herbert sits in Medina County Jail where Sheriff Neil Hassinger calls him "a man without a country." He is awaiting word on when INS will hear his case.

Defense attorney Edmund M. Sawan knew Herbert's citizenship would be a problem right after his 1997 arrest for trafficking in marijuana and possession of cocaine.

Herbert, who admits to abusing both drugs, pleaded guilty to the marijuana charge, and prosecutors dropped the cocaine possession felony. He was ordered to complete a drug treatment and work release program at Oriana House in Akron.

Just shy of completing the program, Herbert fled because he said he knew he was headed for jail. He went to Florida and stayed with friends but returned last March when his father's health deteriorated. His father is a quadriplegic as a result of injuries suffered in a car accident.

He was arrested by a sheriff's deputy at his mother's home March 7. He was ordered to serve nine months for the escape and six months for the original drug charge. Those sentences ran concurrently and were over in December. He remains jailed until the deportation issue is resolved.

Karen Kraushaar, a spokeswoman for the INS office in Washington, said her agency had asked Congress to soften the 1996 law by giving INS more "prosecutorial discretion."

"To date, no discretion has been given," Kraushaar said. She said there were other immigrants facing the same problem as Herbert, but she could not give specific numbers.

The changes affect not only people who are adopted but thousands of legal residents who immigrate to the United States as children with their families, Morawetz said. Pending legislation also would allow judicial discretion for those people.

On Feb. 17, INS officials testified in support of two bills pending before the House Judiciary Committee's subcommittee on immigration and claims. One would extend automatic citizenship to foreign children adopted by U.S. citizens.

Renato Mosca, a spokesman for the Brazilian Embassy in Washington, D.C., said his country hoped for passage of such a bill. Brazil is refusing to provide travel papers that would allow the United States to deport Herbert to Brazil.

Although Herbert is still regarded as a Brazilian citizen, Mosca said his country considered the adoption bond to be important. Herbert said he hoped his plight would help others.

"I'm not just fighting for myself, I'm fighting for other people, too," he said.