Back to Korea for Adoptee
- Back to Korea for Adoptee
New immigration laws mean deportation for a man with a criminal record
by Dan Levine - February 19, 2004
Talk to Dan Heiskala on the phone, and one would
never know he isn't an American citizen. He grew up
in Michigan, the son of an engineer and a nurse.
He is an adopted son, however. On sight, one might
guess Heiskala isn't a citizen -- he has Asian
features -- but with his swoosh baseball cap and
business card announcing him as the proprietor of a
tavern in Massachusetts, he still comes off no
differently than any other native born adult.
But even though he came to the United States as a
toddler, Heiskala is under immediate threat of
deportation back to South Korea. His parents never
got him citizenship, and because he was convicted
of a crime in the early 1990s, a bizarre confluence of
legal circumstance means he has little recourse to
"Honestly, I don't know how to say 'hi' in Korean," he says.
Born in 1968, Heiskala's parents adopted him and brought him to
the United States
as a 5-year-old. Heiskala had three siblings and nestled into a
Being adopted, though, did not mean Heiskala automatically
citizenship. His parents would have had to proceed through a
process, and they didn't do it. His parents wanted to give him
the option of
maintaining his Korean heritage, they reasoned.
Heiskala's status in the U.S. wasn't questioned until a 2003
motor vehicle stop. But
his trouble began in 1993 when, Heiskala says, he drove a friend
a ride to a truck that
the friend wanted to steal. Heiskala says he never set foot in
the stolen truck, just
dropped the friend off. When the police came to Heiskala and
asked about it, he
didn't give up the friend. However, police eventually arrested
Heiskala, who pleaded
not guilty and took the case to trial. The friend, Heiskala
says, testified against him.
On advise of counsel, he didn't testify on his own behalf and a
jury found him guilty.
He received a seven- to 10-year sentence for stealing and
burning a motor vehicle.
Heiskala got out of jail in two years and three months, but
unbeknownst to him, his
legal nightmare had just begun. In 1996, Congress passed a
battery of immigration
laws -- the Immigration Reform Act. Suddenly, felony convictions
could result in
deportation for non-citizens, whereas before 1996 the
consequence might not have
been as serious, says Mike Martel, an attorney with Boston-based
Ross, Silverman &
Levy, who is representing Heiskala. So even though Heiskala was
not deported when
he was originally convicted, the 1996 reforms placed him in
Had he been adopted today, Heiskala would not have to worry
about this outcome.
Following a law that went into effect three years ago,
foreign-born children adopted
by American families now automatically become U.S. citizens when
they enter the
And get this: Had Heiskala pleaded guilty to stealing the car
instead of demanding a
trial, he would be able to escape deportation. This is perhaps
the strangest legal
aspect of his case. Under a June 2001 Supreme Court ruling, the
laws cannot be applied retroactively to people who pleaded
guilty to a crime. The
logic is that the person must have taken their immigration
consideration when they made the deal, attorney Martel says,
meaning the deal -- to
plead guilty to avoid deportation -- should be honored. But if a
person went to trial,
then they somehow waived their right to address their
immigration status now.
By January 2003, Heiskala had opened his own restaurant and
stayed out of trouble.
But he was pulled over for driving a vehicle without
registration -- he says he missed
the DMV that day to register his new car by a matter of hours.
The cop charged him
with DUI, and because his parole had not yet expired, they sent
him back to a state
prison pending disposition of the case.
And that's when immigration stepped in. Even though the motor
vehicle charge was
dismissed, the feds took Heiskala into custody. He is out on
bond, awaiting a court
date where a judge could order his deportation.
In the last twist of circumstance, South Korea refuses to accept
back into its country, so Heiskala may just wind up sitting in
an American immigration