Back to Korea for Adoptee

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.