When Judge David Rosenberg summarily denied the defense’s motion for a new trial, he clearly felt he was properly “splitting the baby” (which might not be the best analogy here) – he angered defense by denying their motion for a new trial based on allegations of judicial error, while at the same time he angered the prosecution by reducing the charges down to a misdemeanor.
Ms. Jo was sentenced to three years’ summary probation and 175 days in jail, which is time served. The defendant was released from jail and into the custody of the U.S. Immigration and Customs Enforcement (ICE) agency.
Defense attorney Dennis Riordan was quick to tell the media that Judge Rosenberg “is dead wrong on the law in this case.” He told the press, “Hold me to it: this conviction will never stand, this conviction will be reversed, and an appellate court will express incredulity that a judge in Yolo County could commit the very same error that the Supreme Court found had been committed in another Yolo County case nine years ago.”
He added, “This conviction is illegal and will be reversed. That won’t save Ms. Jo from serving her sentence because she has already done that, but she will be freed of the label of felon and obviously that will be a very good thing for daughter, father, and mother.”
In his argument during sentencing, he argued that the court needs to consider the best interests of the family. That especially pertains to the daughter. He argued that the court needs to give the family a way to do what countless families do upon dissolution – find an acceptable custody arrangement for the child.
If Ms. Jo is deported, he argued, there is a good chance that the daughter would never have contact with her mother. Therefore, he argued that the judge should reduce the charge down to a misdemeanor – which is the judge’s discretion in cases like these.
Mr. Riordan clearly wanted to get this matter out of the criminal courts and into the custody courts – i.e. the family courts – as quickly as possible. As we have noted in the lead up to our event next week, that may not be a good thing. The custody courts have been notoriously derelict in protecting the best interests of the child.
However, before we jump off that bridge, before this can become a matter for the family courts, it must become a matter for the immigrations courts.
As local attorney Ann Block, who is working with a team of attorneys on the immigration manner, told the Vanguard, this is a complicated case.
Right now, Ms. Jo’s status is up in the air. Currently, attorneys for Ms. Jo are in dispute with U.S. Customs and Border Protection (CBP) over whether Ms. Jo qualifies as a Violence Against Women Act (VAWA) applicant.
Ms. Block told the Vanguard, “Right now, we would term her a VAWA applicant but it is complicated due to the many complexities in immigration law and a variety of interpretations. CBP wants to ignore her VAWA claims and pending applications as a victim of domestic violence and ignore her right to have those applications adjudicated while being accorded the special sensitivity that Congress intended for VAWA domestic violence survivors.”
She added, “We believe that USCIS (United States Citizenship and Immigration Services) erred in ordering her to leave in 2009 (which is the primary reason she left, in addition to her fear of DV) as the gov’t actually KNEW she was a DV victim (from their own notes in the file), and should have informed her she had a right to apply for status under VAWA then.”
“We believe Ms. Jo should be allowed to proceed with one of her VAWA applications which was filed with the Court,” she said.
CBP reportedly wants to deport her immediately, however, she will be allowed a hearing according to Ms. Block, thanks in part to the efforts of Zach Nightingale who has been retained as immigration law council.
There also seems to be some inter-agency dispute between CBP and ICE. Ms. Block told the Vanguard a few days ago, “She is now in ICE custody technically, in the Yuba Co. jail, and it now appears to be that agency’s case, though yesterday it was CBP’s case, and the change seemed unclear even between the two agencies until this a.m., and could change again.”
Ms. Block said that, while they are hopeful that Ms. Jo can remain in the country, they “are concerned that the Yolo D.A. keeps attempting to intervene – the D.A. sent a representative to the child custody hearing held last month to testify against her, and appears to have coordinated with ICE to pick her up directly after release from the jail.”
She explained, “Per the TRUST Act the sheriff is not allowed to hold a person convicted of a misdemeanor such as Ms. Jo’s for ICE nor release her directly to ICE and the sheriff confirmed to me personally he would not do so, though he had no control over ICE in the parking lot, and that ‘rumors had it that they were circling.’”
However, they were apparently notified of her release and were “sitting in the lobby at the jail, in plainclothes, with vehicles parked outside.”
Ms. Block stated, “ICE had informed us previously that they were in “very close contact” with the D.A.’s office.”
She explained, “The ICE agents tried to grab Nan-Hui as she was walking through the internal door into the jail lobby. We intervened, telling them it was illegal to arrest her in the jail or for the sheriff to release her to them – reminding the deputies on duty the same, and after an argument, including being asked if I was ‘obstructing,’ the ICE officers eventually moved outside, and she had an hour of ‘freedom’ in the jail lobby to change her clothes, eat some Korean food and share hugs with her supporters.”
Finally, Ms. Block explained, “It can take more than a year to get a decision from USCIS. We have requested ICE to request USCIS to expedite its adjudication of one of the VAWA applications filed there. We are told that ICE made the request yesterday. We are still forwarding all the documents that are needed to USCIS, which were exceedingly difficult to obtain while she has been in custody, particularly to find and arrange for a Korean-English speaking psychologist to evaluate her. USCIS should have everything we have been able to obtain for her case to date by tomorrow – the initial filings with USCIS on her behalf occurred last fall.”
In the meantime, the custody situation of the young child, who was separated from her mother in July when they went to Hawaii, remains in doubt. While Mr. Riordan argued from the start this should have been a custody court matter rather than a criminal court matter, we have chronicled problems with that as well.
—David M. Greenwald reporting