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
it will be interesting to see if this drags out long enough for the appellate system to overturn the conviction and whether that will impact how ice and immigration see this matter.
This case is fascinating to me from a different perspective. Because of my position, I have seen children returned repetitively to situations of neglect, physical and sexual abuse in the name of “family reunification”. They have been returned to horrific situations because of claimed “parental rights” when they were far too young to testify in their own interests or in some cases too young to even understand what was happening to them. And yet here we are seeing the best interests of the child neglected in subservience to not only the parental claims of only one parent, but a blind insistence on adherence to some very questionably interpreted legal standards ( from what I am reading since I obviously have no direct expertise in the law).
What hypocrisy ! We claim to act in the interest of families and then completely ignore the best interests of the most vulnerable member of the family in question. Why, as just one example, could not Ms. Jo have been secured under house arrest if the issue was flight and allowed supervised visits with her daughter so that the daughter could have the assurance of the presence of her known parent ? Are we so blinded by legal technicalities that we cannot behave in a humane manner towards the real victim in this case….the daughter ?
While this article pretends to implicate the Sheriff and DA in the notification to ICE that their subject of interest was available for pickup, I hesitate, because to the publicity of the Vanguard, and the groups supposedly supporting Ms Jo, to agree with this.
The other question I would have is if the VAWA supports victims who escape to the USA, or stay in the USA? What happened to the passports the mother has for the child? Those are like gold in Korea.
The criminal court took over when Ms Jo pretended not to know how to read her summons, lie to Child Services and the father, and escape to another country. Oh, she could be enrolled in USC Film School, Sac City College for Photography, lie in her emails, but not know how to read a notice to appear. Is the Vanguard going to continue to go with this line of thinking? gamsahamnida
I can find nothing redeeming in the mother’s behaviour. She has shown no evidence of sincerity, at all. She has chosen to take the illegal way over the legal at every opportunity. I firmly believe the child’s best interest would be served by barring Jo from any contact, until she has settled all legal issues, including immigration and has shown some manifest awareness of her guilt and responsibility.
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“She has shown no evidence of sincerity, at all. She has chosen to take the illegal way over the legal at every opportunity. I firmly believe the child’s best interest would be served by barring Jo from any contact, until she has settled all legal issues, including immigration and has shown some manifest awareness of her guilt and responsibility.”
If one holds adherence to arbitrary, changing and many times unjust laws as one’s highest allegiance, then I would agree that she has not shown sincerity. If you believe that a mother’s highest allegiance is the protection of her child, then I disagree.
As a pacifist, on other threads, I have been challenged about how far I would go to protect my child. Would I lie to protect my child ? Would I tell authorities that my child was not mine but a neighbors to protect her as many women did in WWII ? Would I coach in behavior, speech, and dress to allow my light skinned daughter to “pass” as was done in the time of slavery and thereafter ? Would I claim that we were of a different religion, or nationality, or political group to protect my child ? Absolutely ! Every single one of these actions would have been “against the law” but in my opinion in accordance with a higher morality. Would I kill to protect my child ? Probably, thankfully I have never had to make such a horrendous decision.
Yes, I agree, Ms. Jo broke the law. So did the child’s father when grabbing her by the throat and slamming her against a wall. And yet there are those here who defend him and vilify her for actions which I believe were taken to protect her child. I fail to see how the severe “punishment” of the child as well as the mother being removed from the care of the only protective adult she has known, even if that adult has chosen to break some of our precious laws, if ever shifting, and clearly based on political philosophy and expediency. These laws have more to do with someone’s idea of law and order than they do with child welfare. They are centered around which adult has the right to “own” the child. Not what is in the best interest of the child.
Again, good doctor, you are blinded if not by gender loyalty, some underlying misandry? The father has sought help and made lifestyle changes that are clearly indicative of a desire to be a good parent. The mother has used the child as a bargaining chip from day 1. It would be “severe punishment” to allow Jo to continue that practice, while modeling such abhorrent behaviours, lying and evasion from justice, for the child. I also find it disturbing that you are so cavalier about violating our “precious laws.” From interfering with an officer to advocating child stealing and perjury, and insulting the attorneys and witnesses in court trials, indeed, insulting the entire process, you continually show contempt for our legal system and laws.
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Biddlin has the idea I had. I don’t really care about the father either, I lump them in the same boat, but he claims to try, like a drug addict will “try”.
Well said, Biddlin. Tia, you advocate everything this woman has done to play the system for her own greed. I was so afraid of meeting a woman like this growing up, because women like her, and apparently you, are all around me. My mother is one, also. She claims she did everything to “protect us” even when there was no threat. She was the threat,and the lesson has stayed with me forever.
This case is poignant for me, when it said “serviceman” and “Korean wife” with “baby”. Uh oh was my reaction and nothing has been a new idea throughout this, except the so-called supporters this woman has hitched up with.
I’ll bet the deliberations inside “Immigration” are not nearly as transparent as the deliberations inside the local court system.
Unfortunately, even though I voted for him twice (the 2nd time very reluctantly), Obama has defaulted completely on three promises: immigration reform, the “war” on drugs, and peace. Perhaps I should word that more strongly and suggest that he didn’t really default since he was lying about his intentions in the first place, just like most politicians and power-mongering pigs. Oink!
you’re thinking parallels mine. our policies on immigration make little sense, we throw the book at this lady and ignore a variety of other violators.