Sunday, May 9, 2004

Imprisoned immigrant
freed after 31 months

An appeals court rules in a
Hawaii case that an Indian
national was wrongfully held

A native of India who immigrated to Hawaii in 1989 spent the past 2 1/2 years in federal prison based on erroneous deportation rulings by an immigration judge and an appeals board, according to the 9th U.S. Circuit Court of Appeals.

The federal government's handling of the case has been called a miscarriage of justice by local and mainland immigration attorneys who say the immigrant was kept behind bars based on reasons that clearly conflicted with U.S. law.

Critics also said the case typifies the government's tendency since the September 2001 terrorist attacks to overstep its authority in trying to detain and deport immigrants.

"We sadly have numerous examples of the abuse of detention in the post 9/11 era," said Marshall Fitz, associate director of advocacy for the American Immigration Lawyers Association in Washington, D.C.

Ravichandran Shivaraman, 41, was released March 15 from the federal detention center in Honolulu after the 9th Circuit ruled that the appeals board erred when it upheld the immigration judge's order to deport Shivaraman. The judge's order stemmed from Shivaraman's first-degree theft conviction in December 2000 in Maui state court.

After serving a seven-month sentence for that conviction, Shivaraman immediately was transferred to federal custody and spent 31 months imprisoned while he contested the deportation order, first by asking the judge to terminate the removal proceedings. When that was denied, Shivaraman requested the immigration board to overturn the judge's order, and when that was denied, he appealed to the 9th Circuit.

Shivaraman had asked to be freed while his challenge was pending, but that request -- made shortly after the terrorist attacks -- was denied. The government claimed he was a flight risk.

About 2 1/2 years later, on March 12, a three-member panel of the 9th Circuit ruled that the immigration board erred by permitting the judge to determine that Shivaraman's date of admission into the United States was January 1997, when he obtained his permanent U.S. residency.

The judge picked that date even though Shivaraman had been in the country legally since 1989, arriving as a nonimmigrant student, according to the 9th Circuit decision.

The date selection was significant because first-degree theft is considered a crime involving moral turpitude. If such a crime is committed within five years of an immigrant's admission to this country and it carries a possible sentence of at least one year, as Shivaraman's did, the person is deportable under federal immigration law.

In taking Shivaraman into custody, immigration authorities argued -- and the judge agreed -- that January 1997 should be considered his admission date for purposes of determining deportation because that date marked a change of his immigrant status.

Based on that interpretation, the government was able to order Shivaraman to return to India under the five-year threshold law.

But the 9th Circuit panel said that interpretation was wrong.

"The statutory text leaves no room for doubt, unambiguously defining admission as the lawful entry of the alien into the United States," the ruling said. "Further, the statute makes clear that it is the date on which the alien lawfully enters that triggers the five-year period."

In Shivaraman's case, his conviction came more than 10 years after he lawfully entered the country, according to the 9th Circuit.

The panel chided the immigration board for saying that multiple dates could constitute an individual's admission date and that any one of them could be used to decide deportation questions.

"The board effectively established a regime whereby an (immigration judge) may pick and choose, without guidance and at his apparent whim, among several dates of 'admission' for purposes of determining removability," the 9th Circuit ruling said.

Framing the issue in a broader context, the panel said the board's decision "allows for an (immigration judge's) exercise of unbounded discretion with disparate effects and drastic immigration consequences."

Immigration officials could not be reached for comment. A spokeswoman at an immigration office in California with regional responsibility for Hawaii referred questions to an immigration office in Virginia. That office referred the Star-Bulletin to the U.S. Department of Homeland Security in Washington, D.C. The press office there referred inquiries about the case to an immigration office in Washington. An official with that office could not be reached Friday for comment.

But the 9th Circuit ruling noted that the immigration judge, who wasn't identified, justified his decision by citing two previous decisions, one issued by the immigration board and the other issued by the 9th Circuit. In the earlier cases, one of which also was cited by the board in its Shivaraman decision, the aliens' dates of admission were pegged not to when they arrived in the country but when they subsequently changed their immigrant status.

The 9th Circuit panel on the Shivaraman case, however, noted that the two earlier cases had a major difference with Shivaraman's. In those cases, the aliens initially arrived in the United States illegally, effectively precluding those dates from being considering their lawful admission, according to the panel.

The three-member group of Judges James Browning, Stephen Reinhardt and Sidney Thomas granted Shivaraman's petition to overturn the deportation order, resulting in his release three days later.

Shivaraman, through his Honolulu lawyer, declined comment for this article.

"We are pleased with the (9th Circuit) decision, and my client wants to move on with his life," said attorney Gary Singh, who declined further comment.

Other immigration attorneys said Shivaraman's case reflects an enforcement policy under U.S. Attorney General John Ashcroft that goes beyond what previous administrations have done and sometimes beyond what the law allows, resulting in unfair imprisonments and deportations.

"It shows that the immigration service under the current attorney general is trying to stretch the interpretation of the law, in my opinion, to include things that were never considered to be removable before," said Ron Oldenburg, a Honolulu attorney who has practiced immigration law for more than three decades. "Unfortunately, (Shivaraman) was penalized because they tried to stretch the law."

In most cases, immigrants unfairly incarcerated pending deportation aren't willing to fight the government because the prolonged appeals process could mean several years behind bars -- even if the immigrants ultimately prevail, which is far from certain, Oldenburg said.

Rather than take that risk, most will return to their home country to regain their freedom, giving up any chance of ever becoming a permanent U.S. resident, he said.

"That happens time and time again," Oldenburg said.

He said he was amazed Shivaraman was willing to risk years of imprisonment to try to remain in the United States.

Shivaraman's immigration problem began after he pled no contest in August 2000 to the first-degree theft charge, a felony. He could have been sentenced to a maximum 10 years in prison.

But he was instead given the seven-month sentence, placed on five years probation and ordered to pay restitution of $67,403.


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