Too little, too late
Judge denies novel legal move aimed at changing Pasadena man’s deportation order
By Kevin Uhrich 08/15/2013
A Pasadena Superior Court judge this week dashed a longtime resident’s hopes for freedom after refusing to vacate the conviction that led to his deportation by federal authorities.
Andres Romero, a former Pasadena gang counselor, was found guilty of burglary in 2004, served nearly nine years of an 11-year sentence and was then immediately turned over to US Immigration and Customs Enforcement (ICE) officials to face deportation proceedings upon his release from prison a few days before Christmas.
Although the 53-year-old Romero has been married for more than 33 years to an American citizen, with whom he’s fathered four now grown children, and has lived in the Pasadena area since he was a child, he never became a naturalized citizen.
After a number of hearings conducted over the past six months in federal administrative court in downtown Los Angeles, US Immigration Judge Anna Ho found that Romero did not qualify for any special consideration, primarily because immigration rules mandate deportation of “aggravated felons,” or convicts who commit crimes drawing sentences of more than five years behind bars.
Despite claims that he was the victim of sexual abuse as a child, a crime, if proved, that might have allowed him to temporarily remain in the United States, that he was attacked twice by men he identified as police officers while visiting Mexico on two separate occasions and that he does not speak Spanish, Ho ultimately ordered the deportation of Romero, who is currently being held at the Adelanto Detention Facility near Victorville.
Ho, who heard testimony from Romero, his mother and his wife, Cheryl, found that, while Romero’s claims of being detained, beaten and robbed by police officers in Mexico on two separate pleasure trips there in the 1980s and ’90s were credible, they were not enough to prove that he would be tortured by government forces if he were to be sent to that country, as Romero contended. “The Court finds [that] Respondent’s statements in his asylum application and his oral testimony are believable, consistent, and sufficiently detailed to provide a plausible and coherent account of his asylum claim. Accordingly, the Court deems Respondent’s testimony to be credible,” Ho wrote. In his testimony, Romero called deportation a “death sentence.” The judge also later denied Romero’s request for bond while waiting for word on his appeal to Ho’s decision. Romero filed an appeal to Ho’s mid-June deportation order with the Board of Immigration Appeals (BIA) in Virginia. A decision from that court could take up to six months.
In a novel legal move, Romero filed a request with the state Superior Court to set aside his original conviction and reduce the charge to trespassing, a misdemeanor. The idea was to be resentenced under those provisions, with credit for time served.
On Monday morning, one of Romero’s sons, 27-year-old Andres Romero III, stood before Pasadena Superior Court Judge Elaine Lu to plead his father’s case. Since he is not a lawyer, he was not allowed to speak on his father’s behalf. In papers filed with the court, the elder Romero explains his plight, telling the judge that he represented himself in the burglary case, that the crime was much more of a trespassing beef, and that he was forced to take the long sentence as a way of avoiding a life sentence under now-reformed provisions of the state’s three strikes and you’re out law. Romero had been previously convicted of nonviolent drug-related offenses.
But in her analysis, a patient and seemingly understanding Lu explained to Romero’s son that his father was advised at the time of his trial that there might be adverse consequences with immigration officials following a conviction, that too much time had passed since the conviction to change it, and that the elder Romero was no longer an inmate of the state, therefore ineligible for habeas corpus, a legal principle which means a person in custody must be brought before a judge in order to be released from unlawful restraint. In addition, because Romero represented himself, he could not claim he had ineffectual counsel.
“That would be like a surgeon conducting surgery on himself and then complaining that he did a bad job,” as one deputy district attorney explained to the younger Romero afterward.
Romero, who wrote columns about gang life in Pasadena for this newspaper before and after going to state prison, said he was being punished twice for the same crime, violating the longstanding legal principle of double jeopardy. “In essence, I am being detained and prosecuted for the same offense that led to my incarceration in a state prison,” he wrote in a column that appeared n January. He also criticized Ho, who said Romero was a potential flight risk and a danger to the community before denying him a chance to post bond.
“As for being a flight-risk, this is my America. This is where I have lived my entire life, 40 years alone in Pasadena,” he wrote in a letter that appeared in the paper’s Aug. 1 edition. “A danger to my community? I am not, nor have I ever been a violent offender, let alone a terrorist and a threat to our national security. Prior to my 2004 conviction, I spent years as a youth and peace advocate, preventing gang and racial violence, protecting (our) youth by speaking out against child and sexual abuse. I have given years of volunteer service in my community and schools in the prevention of violence.”
“Unfortunately,” Judge Lu said Monday morning, concluding the hearing in Pasadena Superior Court, “I have to deny the motion to vacate.”
After attending most of the federal immigration court hearings downtown, and now this last-ditch effort in state court, Romero’s son’s thoughts turned to his mother, Cheryl.
“He’s strong,” he said of his dad. “It’s my mom that I’m worried about. She’s the heart of our family, and there is only so much she can endure.”
A nearly 20-year employee of Avon in Pasadena, Cheryl expects to be among those laid off when the company closes in January. Andres III said his younger brother, a US Marine, was married recently, a few weeks before he is scheduled to ship out to Egypt.
“Even when we are having a good time, you know what she’s going through, so she can’t even enjoy things like this,” said the devoted son. “So I said to my mom, ‘Are you ready to move to Mexico?’”