IMMIGRANT CONTESTING DEPORTATION SPOUSE ABUSE PLEA COULD RETURN HIM TO YEMEN

The Plain Dealer
Cleveland, OH
Oct 17, 1999

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Authors: MICHAEL SANGIACOMO PLAIN DEALER REPORTER
Pagination: 1B
Dateline: KENT
Personal Names: Hansen, Mark

Abstract:

When Akron Municipal Judge Carla Moore asked Ashraf Al-Jailani if he understood that pleading no contest to domestic violence meant deportation, Al-Jailani leaned over and asked his wife what "deportation" meant.

Al-Jailani said he followed the advice of the public defender he met for the first, and only, time 10 minutes before the hearing on Jan. 22. He pleaded no contest to hitting his wife in the face during an argument over buying a Christmas gift.

On a recent fall afternoon, the little family sat at an outdoor café contemplating their options. Al-Jailani, a slight man who left his family in Yemen in 1995, smiled as his year-old daughter, Layla, painted the table with ketchupy french fries. On the other side of the table, his American-born wife, Michele, tried to cheer up their sullen daughter, Amina, 3. The couple married in early 1996.

(Copyright (c) The Plain Dealer 1999)

Full Text:

E-mail: msangiacomo@plaind.com Phone: (216) 999-4890

When Akron Municipal Judge Carla Moore asked Ashraf Al-Jailani if he understood that pleading no contest to domestic violence meant deportation, Al-Jailani leaned over and asked his wife what "deportation" meant.

Al-Jailani said he followed the advice of the public defender he met for the first, and only, time 10 minutes before the hearing on Jan. 22. He pleaded no contest to hitting his wife in the face during an argument over buying a Christmas gift.

Moore sentenced Al-Jailani to a year's probation.

A second and more painful sentence came later: A lifetime of exile from his wife and two children by the U.S. Immigration and Naturalization Service.

An immigration judge ordered Al-Jailani deported after a swift hearing on Sept. 10, following legislation mandated by Congress to deport all immigrants convicted of certain crimes, including domestic violence.

On a recent fall afternoon, the little family sat at an outdoor café contemplating their options. Al-Jailani, a slight man who left his family in Yemen in 1995, smiled as his year-old daughter, Layla, painted the table with ketchupy french fries. On the other side of the table, his American-born wife, Michele, tried to cheer up their sullen daughter, Amina, 3. The couple married in early 1996.

"I do not understand this," Al-Jailani said. "I have always tried to do right. I am a geologist, but it is hard to get work, so I work as a laborer in a factory while my wife goes to medical school. We always figured that I would support us while she became a doctor, then it would be my turn. We would have the money and I could work on my career and education. Now they are taking it all away."

Michele refused to press charges against her husband for the pre- Christmas incident in the parking lot of the Chapel Hill Mall, but the Akron Police Department pursued it on her behalf.

Federal law demands that police departments pursue domestic violence case seven if the victim declines to prosecute. The reason for that law is the belief that an abusive husband can coerce a battered wife into not testifying.

"It just shows the harshness of the system," said Richard Herman, a Cleveland lawyer who specializes in immigration issues.

"This law, and the law that says an immigrant can be deported for any conviction of a crime that carries a year in jail, is very harsh. All it takes to make an immigrant deported is for an angry wife or girlfriend to file a police report for abuse. If he's convicted, he's gone."

He said immigrants, who are often the American residents most in need of help, are very vulnerable to the system.

"They get a lawyer and they believe that he will do what is right for them," Herman said. "But some lawyers are not familiar with the laws and regulations, so they end up making matters worse."

Michele said the argument that resulted in their legal nightmare started over a treadmill.

"It's so stupid," she said. "I was taking my finals for my pre- med classes at Kent State and I was totally stressed out. We got into an argument. He liked one and I liked the more expensive one. It just got out of control. We were arguing in the car, the kids were crying in the back seat. He reached into the back seat and hit my glasses when I turned my head suddenly. That was all there was to it.

"I got excited and got out of the car and ran up to a police officer," she continued. "I said I wanted a place to spend the night because I have no relatives here; I just wanted to get away from everything for a while."

Michele said that by the time her husband returned to the car with the children, after he went out looking for her, she was calm. But she learned you can't withdraw a complaint of spousal abuse.

Al-Jailani was arrested and charged with domestic violence.

At his hearing before Judge Moore in January, Al-Jailani took the advice of his public defender, Christopher Thurman, and pleaded "no contest." But when Moore advised him that his plea would mean deportation, Al-Jailani was confused.

He said he tried to explain to the judge that he did not want to be sent back to Yemen and that Thurman told him the chances were "a million to one" that the INS would deport him. But words failed him. Even the court reporter recorded half-sentences and marked many points of conversation as "inaudible."

Eventually, Moore accepted the plea and sentenced Al-Jailani to a year's probation. It was Al-Jailani's first and only brush with the law. The INS was advised of the case and scheduled a hearing, which ended with an order of deportation.

Domestic violence is one of several violent crimes that carry an automatic deportation penalty. The INS will also deport any person convicted of a felonyor misdemeanor that is punishable by a maximum of one year in jail. The couple hired a new lawyer, who filed a motion to withdraw the no contest plea, maintaining that Al-Jailani did not understand the ramifications of his plea.

Thurman and Moore could not be reached for comment.

Elizabeth M. Williams, Akron assistant city prosecutor, argued against Al-Jailani's appeal.

"If we allow people to withdraw their pleas months and months after it occurred, it makes the job dangerous for us," she said. Williams said that if Al-Jailani knew enough English to attend a master's degree program at the University of Akron, then he understood Moore's instruction that his plea of no contest meant deportation.

"He acts like he understands a lot more than he does," said Michele. "He's very good at convincing people that he is fluent, but he is not. I translated most of his homework for school, which is why he did well. He understands words used in his field of geology but not that much of the language."

The appeal was denied but could have been appealed to a higher court. However, Al-Jailani's second lawyer accepted a job with Summit County and abruptly dropped his cases. By the time the couple learned about it and tried to hire another lawyer to continue the case, the 30- day appeals period had expired.

Akron Public Defender Joe Kodosh said he is aware of the change in the INS code that went into effect last September that means deportation for an immigrant convicted of certain crimes. He said he did not know how familiar his staff was with the law.

"We don't often get cases of immigrants charged with a deportable crime, "he said. "I think I informally talked to the people in the office about it, but nothing formal."

He said he believed that Thurman explained the situation properly to Al-Jailani, but said he was not part of any such discussion. Thurman was a legal intern with a certificate from the Ohio Supreme Court to practice law in a very limited fashion under a supervising attorney - Kodosh.

Kodosh said he did not review the case before court and did not attend the court hearing when Al-Jailani pleaded no contest.

There are two versions of the advice Thurman gave to Al-Jailani.

Al-Jailani and his wife insist that Thurman recommended that Al- Jailani plead no contest and told him that the deportation warning was merely a formality. They said he told them the chances that he would be deported were "a million to one."

Mark Hansen, acting director of the regional INS office, said such a plea means an almost automatic deportation.

Kodosh said he was told that Thurman recommended against a plea and wanted Al-Jailani to request a trial.

"I believe Thurman told Al-Jailani that there was a potential that he would be deported if he pleaded no contest," Kodosh said. "Chris would deny that he ever said the chances against deportation were a million to one."

Kodosh has contacted Al-Jailani's lawyer to offer aid in pursuing an appeal.

It is not certain if anything done at the Akron Court level will affect the INS activity.

Hansen said the deportation would proceed, even if an immigrant's criminal record is expunged, or if he has the sentence vacated by the court, or if he is pardoned by the governor.

Rick Kenney, spokesman for executive office of immigration review, said there is a good chance immigration officials would reopen the case if Al-Jailani gets a new trial and is found not guilty.

If he does not get the plea reversed, he will have a tough time staying in this country. Kenney said only about 10 percent of all deportation cases are appealed and reversals are rare.

"Immigration review does not retry the case," he said. "They only determine if the immigration judge followed the law. They only look at the process, not the case itself."

Al-Jailani is talking to lawyers about his options to have his plea withdrawn, even though the time for appeals has past.

"In all fairness, the court has to consider that Ashraf did not know what he was doing," his wife said. "If either of us realized that by pleading no contest that the life that we have known would end, he would not have done it. I have to believe that the courts will give us a chance. They can't be unfeeling."

PHOTO BY: MARC GOLUB / ASSOCIATED PRESS PHOTOGRAPHER Ashraf Al-Jailani with his wife, Michelle, and daughters, Amina, left, and Layla. Ashraf Al-Jailani says he did not know that pleading no contest to a domestic violence charge would result in his deportation.

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