Clock running out on Korean single mother awaiting deportation

Less then an hour after being released from Yolo County Jail in northern California on April 28, where she had been detained for 9 months on child abduction charges, South Korean immigrant Nan-Hui Jo was hauled to another jail by immigration officers.

Jo, 43, was convicted of felony child abduction on March for taking her U.S.-born daughter to South Korea with her in 2009 after immigration officials told her to leave the country because her green card application had been denied.

According to Jo’s court testimony, she took her then 1-year-old daughter, Hwi, with her because she said the father of the child, Jesse Charlton, was abusive and, she believed, incapable of taking care of their daughter.

Jo was arrested last July when she entered the U.S. via Hawaii and Hwi was given to her father, who had filed child abduction charges against Jo while she was in Korea.

"This is very disturbing that Nan-Hui Jo, who is a victim of domestic violence herself and had to take her child outside of the country to protect her, is being so aggressively pursued by the [Yolo County] district attorney and now immigration officials," said Angela Chan, policy director of the Criminal Justice Reform Program at the Asian Law Caucus in San Francisco.

Jo’s case has drawn nationwide attention and support from more than 130 women's rights and immigrant rights groups in the U.S. Her supporters say that Jo is being aggressively prosecuted. Her domestic violence claims, they add, are being largely ignored in her criminal and immigration cases because she is an Asian woman and an undocumented immigrant.

Zachary Nightingale, a San Francisco-based immigration attorney representing Jo, said his client was not aware of the child abduction charges against her when she reentered the U.S. in July.

"She thought she was doing the right thing by taking her daughter with her to Korea," he said. "When she went to Hawaii, the purpose of her visit was to find a U.S. school for her daughter because she wants her U.S. citizen daughter to be educated in the U.S.”

Jo's first trial in December resulted in a hung jury, but the Yolo County district attorney pursued a retrial, which led to her conviction in March. Jo has not seen her daughter since July.

On April 28 Yolo County Superior Court Judge David Rosenberg reduced Jo’s conviction to a misdemeanor and sentenced her to 175 days in jail and three years of informal probation, which doesn't require her to report to a probation officer. She was released because she had already served 273 days in jail, 98 days more than her final sentence required.

But Jo's freedom was short lived because immigration officers were waiting outside the jail to take her to a nearby immigration detention facility.

"The judge and the district attorney completely ignored all evidence that Nan-Hui is a victim of domestic violence and sided with the father of the child, who they have wrapped in the American flag even though he is domestic violence abuser," said Beverly Upton, executive director of the San Francisco Domestic Violence Consortium.

Charlton, who is from West Sacramento, is an Iraq veteran. According to his court testimony, he suffered from post-traumatic stress and a traumatic brain injury while serving in battle in Mosul.

During the criminal trial, Charlton admitted that in 2009, before Jo went to Korea with Hwi, he grabbed Jo by the throat and threw her against a wall during an argument. Jo called police twice, but officers did not arrest Charlton, according to court documents.

During closing arguments on February 27, Yolo County Assistant Chief Deputy District Attorney Steve Mount, referring to Charlton, said, “He's punched the wall, he's punched the steering wheel, he watches porn, he drinks alcohol, he's irresponsible, he's bad with money. Not great parent material but still with rights to be determined in a court of law, just like Ms. Jo is having her rights determined here in a court of law.”

Despite these statements in court, Mount told Al Jazeera America: “This was one abusive incident but this is not domestic violence. There is no power and control relationship here, even though he is bigger and stronger than her.”

Upton said that Mount downplayed the domestic violence incident because Charlton wasn’t arrested after he attacked Jo and because emphasizing the domestic violence issues against Charlton could have exempted Jo of the child abduction charges.

Reading a statement during Jo’s sentencing on April 28^, Charlton said that he had changed over the years and that he suffered greatly during the five years that he was separated from Hwi. “My grades suffered and I withdrew from society,” said Charlton, who was enrolled in Sacramento City College at the time.

Charlton said his reunification with Hwi in Hawaii after Jo’s arrest was, "hectic and painful ... she had an intense desire to reject me. Twice my daughter struck me in the face and I had to put her in her room. We both cried alone...we went through hell."

Charlton did not respond to Al Jazeera America’s request for an interview.

In his closing arguments during Jo's sentencing on April 28, Mount said that this was a clear-cut case of child abduction.

"This has nothing to do with immigration whatsoever… we help people no matter what," Mount told Al Jazeera America. "Only when they don’t follow the law, they don’t do the right thing and in this case the father didn’t have any contact with the child what so ever, we filed charges."

He says that that the Yolo County Child Abduction Unit emailed Jo in South Korea informing her of her need to appear in Family Law Court in Sacramento and sent her copies of the court paperwork. "All Ms. Jo had to do was call the court and have a telephonic appearance," Mount said.

But Upton and other women's rights activists say the system that Mount is talking about doesn't take into consideration the state of mind that survivors of domestic violence are in and the distrust and fear they have of contacting authorities.

"Ms. Jo was a victim of domestic abuse in a previous relationship as well and was never informed that she had rights under the Violence Against Women Act, especially as an Asian immigrant who spoke very little English and was isolated from the Korean-American community," said Nightingale, the San Francisco-based immigration attorney.

Furthermore, Jo’s criminal attorney, Dennis Riordan, is appealing the case because he says judge Rosenberg altered the definition of "malice" by not telling jurors to consider Jo’s state of mind, including her fear of being deported and belief that her daughter was better off with her.

During the sentencing, Rosenberg denied Riordan’s request for a retrial and said “there was no prejudicial error” on the part of the court and that his instructions to the jury were correct.

Al Jazeera America’s request to speak directly with Rosenberg was denied by a Yolo County Superior Court representative.

Orchid Pusey, associate director of the Asian Women’s Shelter in San Francisco, says that the stigma of being labeled as domestic violence victims is high in Asian American communities. She says that more Asian women have been reporting domestic violence in recent years, especially to shelters that offer services in the various Asian languages and dialects.

"The actual percentages are higher than what is being reported… women still fear being caught up in a legal system that puts a big burden on them to prove the violence," said Pusey, who has worked with survivors of domestic violence in San Francisco since 2001. She says that fear stemming from a perception of a widespread national anti-immigration sentiment is common among Asian immigrants.

"The biggest growth in domestic violence outreach and support has been in programs for Asians," said Pusey.

Ann Block, an immigration attorney who is working on Jo's case with Nightingale, says she is worried that, as the attorneys and courts sort through all of the cases, time is running out for Jo, who hasn’t seen her daughter in 9 months and could be deported at any time.

"If Nan-Hui remains in immigration custody and is deported then she won't be able to represent herself in family court for the ongoing custody dispute over her daughter and may never be reunited with her daughter," said Hyejin Shim, who works at the Asian Women’s Shelter in San Francisco and leads a campaign to free Jo.

"She's being hit from all sides," said Shim referring to Jo's immigration, custody, and criminal cases.

According to guidelines set by the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE) officials should prioritize the detention and deportation of undocumented immigrants who are suspected of terrorism, espionage or are convicted of a felony.

The guidelines also say that immigration officials "should not expend detention resources on aliens who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest."

According to ICE, from 2011 to 2014 the agency deported more than 1.4 million individuals from the U.S.

“We are unable to discuss any aspects of this case but I would encourage you to revisit Homeland Security Secretary’s November 2014 memo laying out the Department’s immigration enforcement priorities, which include individuals who have been convicted of “significant misdemeanors,” said Virginia Kice, the western regional spokesperson for the ICE office based in Yuba County.

The ICE memo places Jo in the second of three priority categories because she was sentenced to more than 90 days in prison. However, the ICE policy also says “careful consideration should be given to whether the convicted alien was also the victim of domestic violence; if so, this should be a mitigating factor.”

"The courts and immigration systems have failed to protect Jo and are treating her as a criminal instead of a survivor of domestic violence,” said Nightingale. "We want her released from immigration detention."