Monday, July 28, 2008

Immigrants Face Jail or Deportation

He came to California from Afghanistan at age 12, a refugee of the Soviet-Afghan war and, he says, a victim of torture.

His family settled in Fremont, where he went to school, got a job, became thoroughly Americanized - and made one bad mistake. In 1997, when he was 22, he had sex with his 14-year-old girlfriend and served eight months in county jail.

But by 2003, he had put his life back together and opened up his own body shop. Believing his past was behind him, he applied for U.S. citizenship. He's been in a federal prison in Arizona ever since.

For more than four years, Obaidullah "Chito" Rahimi, 33, has languished behind bars, ordered deported because of that old conviction. He faces an agonizing choice:

Should he remain in an American prison and fight his case in court, in hopes that someday a judge will let him go home to his family and friends?

Or, to escape jail, should he agree to be deported to Afghanistan, a country where he doesn't know a soul, where he cannot read the language, and where he fears he will be targeted for kidnapping or murder because he's an American?

According to immigration experts, Rahimi's dilemma is an extreme example of the choice confronting more than 90,000 immigrants who face removal from the United States each year because they have been implicated in crimes.

Experts say a combination of tougher laws and improved technology for computer background checks has led to a surge in deportation orders for immigrants who commit crimes in the United States - even misdemeanors, as in Rahimi's case.

Once detained, many immigrants simply agree to be sent home to avoid jail, the experts say. Others who contest deportation have their cases heard relatively quickly or are freed on bail while cases are pending. But sometimes when an immigrant appeals a deportation order, he can spend years in jail while the case is litigated.

"I am absolutely outraged by this case," says Alameda County Supervisor Gail Steele, who has lobbied, unsuccessfully, to get relief for Rahimi since his family asked for her help last year.

"He paid for his crime," says Steele, whose district includes part of Fremont's big Afghan émigré community. "He has done nothing illegal (since then) except try to walk in and become a citizen. ... He does not belong in prison. He is not a terrorist."

In court, U.S. Immigration and Customs Enforcement attorneys have portrayed Rahimi's case as open and shut. In the 1990s, Congress toughened immigration laws, adding many crimes to the list of deportable offenses. Because he was convicted of having sex with a minor, Rahimi has no right to remain in the United States, the government says - and no right to post bail while he appeals.

Government lawyers in Rahimi's case also have disputed his claim that he faces danger in Afghanistan, instead portraying the country as relatively peaceful and stable since U.S. forces overthrew the Taliban government seven years ago.

"Torture does not appear to be systematic throughout the country," Jerri Brewer, a lawyer for the Department of Homeland Security, said at a hearing in 2004.

But a recent U.S. State Department advisory says that Afghanistan is still racked with violence and disorder: American travelers there could face "kidnapping for ransom and death" at the hands of bandits, drug gangs, or al Qaeda and Taliban insurgents, the department warns.

During four years of appeals, Rahimi has managed to stave off deportation. But so far, no judge has granted him release from prison, even temporarily.

Nor does Rahimi's plight elicit any sympathy from the mother of the former girlfriend.

Informed of the case by The Chronicle, the woman, who asked not to be quoted by name, said Rahimi was now "getting what he deserved." She said she believed he had gotten off too easily when arrested in 1997.

"If it was your daughter, you'd feel the same," she said.

Rahimi was born in Kabul in 1974, five years before Soviet troops invaded. In court, Rahimi said his father joined the anti-Soviet resistance, and sometimes Russian soldiers and their Afghan allies came looking for him. Rahimi, oldest of six children, said he was beaten and tortured by Russians seeking to learn the father's whereabouts. He said his mother was abused as well.

"Both of us carry the scars of the torture on our bod(ies)," he told a judge in 2004. "I was stabbed by the knife on my leg, still there is big scars." He was no more than 9 years old at the time of the incident.

In 1984, the family fled to Pakistan. Three years later, they were admitted to the United States as refugees and settled in Fremont. Rahimi attended Chabot College in Hayward and worked as a school janitor and security guard. Some people presumed Rahimi was Latino, and he used a Latino-sounding nickname, "Chito."

In 1997, he began dating a student at Fremont's Washington High School. The 22-year-old Rahimi told her he was 18. The girl was 14, but told him she was 15, he later said. On March 3, 1997, court records show, Rahimi picked her up in his BMW during lunch hour, and they had sex in the car. Afterward, the girl told a friend's mother she had been raped.

Four days later, the girl went to the Fremont Police Department and phoned Rahimi.

While a detective secretly taped the call, Rahimi told the girl he loved her and said he had been calling her for days. It would "break my heart" if he couldn't see her anymore, he said.

"How come when I asked you, you didn't" stop? the girl said.

"You didn't tell me to stop," he replied. "I didn't force you or anything. I'm not going out with any other girls. I swear to God, you're the first girl I ever loved in all my life." He asked her not to tell her parents, saying he might have to go to jail.

The next day, he was arrested, and two months later, he pleaded guilty to a charge of having sex with a minor.

He was sentenced to one year in jail, with the promise that after he served his time the conviction would be reduced to a misdemeanor.

After eight months in jail, Rahimi was released on probation. At first, he didn't do well. In 2000, he tested positive for cocaine and was jailed for four more months.

Rahimi contends he settled down after that. He opened his body shop in Hayward, where he said he employed two younger brothers, and he helped care for his aging mother, who had begun suffering from mental illness.

Then Rahimi applied for U.S. citizenship, as had his parents and siblings before him. He expected no problems, but when he appeared for an interview on Dec. 19, 2003, immigration officers noticed his conviction in a computer database and arrested him.

Rahimi was imprisoned in Eloy, a small town 50 miles from Tucson where more than 1,500 immigration detainees are held.

At a series of hearings in 2004, Rahimi, serving as his own lawyer, challenged the deportation order, contending that "Afghanistan is not safe for me to go back and live." At one point, Immigration Judge Jeffrey Zlatow asked where else he wanted to go if his deportation were upheld. Rahimi chose Canada but admitted he had no ties to that country.

"Any other countries, sir?" the judge asked, according to a transcript.

"How about Iran, maybe?" Rahimi replied. Then he asked to speak.

"Give me the short version," the judge said. "I have other cases today."

"I would like to apologize for the crime that I have been convicted (of)," he said.

In the hearings, Rahimi briefly described the ordeal he said he endured as a boy - "Your honor, during the war with the Russians, I was tortured, interrogated, horsewhipped," he said - and offered to show the judge the knife scars on his leg. The judge didn't want to see them.

Rahimi said he didn't know anyone in Afghanistan, and couldn't read Farsi or speak it properly.

Despite the presence of U.S. forces, he argued that the country was still terribly dangerous, particularly for him. Afghans "would consider me as an American and as a non-Muslim," he said. In a land where "people are getting killed left and right," he said he could be attacked for political or religious motives - or kidnapped for ransom by somebody who presumed that, as an American, he had money.

Under questioning from a government lawyer, Rahimi acknowledged his crime but denied he had forced himself on the 14-year-old girl. He also argued he had turned his life around and asked for mercy. "I would appreciate the government of the United States to give me a chance to live in the best country in the world, which is USA," he said.

The judge ruled that Rahimi's conviction for having sex with an underage girl constituted both child abuse and sexual abuse of a minor - both deportable offenses. But he also wrote that in Afghanistan, Rahimi might well face persecution or violence. He granted Rahimi a form of relief called "withholding of removal," and barred the government from deporting him to Afghanistan. He ordered Rahimi sent to Iran instead.

But Rahimi, apparently, has no ties to Iran, either, and Iran has refused to issue him a travel document. Meanwhile, the U.S. government appealed the case, saying the judge had wrongly blocked Rahimi's deportation to Afghanistan. From prison, with the help of lawyers, Rahimi also appealed, arguing that his crime was not the sort of serious offense that justified deporting him. He also blamed the government for the years of delays in the case, and asked to be freed from prison while awaiting an outcome. Another hearing is set for October.

San Francisco immigration lawyer Sheila Quinlan, who reviewed the case for The Chronicle, said Rahimi's dilemma reflects the "absurd outcomes" that sometimes have resulted from Congress' toughening of the immigration laws.

"Misdemeanor convictions considered minor and fully dismissible under state law are considered on a par with murder, kidnapping and rape," she wrote in an e-mail. "This case is an example of this problem."

While in prison, Rahimi rarely sees his family, but they have worked hard on his behalf.

They wrote heartfelt letters to the immigration court, and collected more than 100 signatures on petitions pleading for his release. They persuaded Supervisor Steele to intervene.

In 2006, his father and his oldest sister went to Washington, D.C., to take part in a protest of tough immigration laws, according to a publication of San Francisco's Immigrant Legal Resources Center.

But the family declined to be interviewed about Rahimi, who now is in his 54th month in immigration prison. In a brief phone call, his sister said the family fears that publicity about the case might hurt his chances of going free.

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