Sunday, June 20, 2004 | Woman spared deportation | Woman spared deportation

Woman spared deportation
Legal immigrant freed after Homeland Security relents to husband and a lawmaker

RELATED: Background information
Mi-Choong O'Brien found mercy at last.

The U.S. Department of Homeland Security released the 51-year-old Fairfax County housewife from jail in Arlington County after trying to deport her to a foreign homeland for almost six months.

"I'm excited to see my children - I'm on the way!" she said by cell phone as she left the jail yesterday.

O'Brien, who has lived in the United States for almost 20 years and raised a family here, served a month in jail for stealing from her employer two years ago. She was arrested by federal immigration agents in early January under a 1996 law that allows legal immigrants to be held without bond and deported for crimes as minor as shoplifting. The Times-Dispatch first reported her plight on April 8.

"The immigration service is having to administer some very draconian laws," said her lawyer, Jim Tom Haynes. "In this particular case, they made the right decision at the highest level."

"Unfortunately," Haynes added, "there are thousands of immigrants with minor transgressions and strong family ties in the United States who are languishing in jail."

Currently, the government is detaining about 23,000 people across the United States on immigration violations. Most of those held are legal immigrants convicted of various criminal offenses.

The government's decision came hours after U.S. Rep. Frank R. Wolf, R-10th, appealed to the agency's second-highest-ranking official and formally renewed his request for O'Brien, a native of South Korea, to be released.

"I don't believe the intent of the law was to detain and deport individuals like Mi-Choong," Wolf said. "She's paid her debt to society."

The government released O'Brien two days after she lost her appeal of the deportation order. The Board of Immigration Appeals determined that an immigration judge was right in finding her eligible to be deported under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

After winning the legal case, immigration officials decided to relent.

"Based upon the merits of the case, we exercised our discretion," said Russ Knocke, director of the press office of the Bureau of Immigration and Customs Enforcement.

The 1996 law redefined the term "aggravated felony" to include any conviction that carried a sentence of a year or more, regardless of whether any or all of the sentence had been suspended.

It made detention mandatory, with no bail, and took away the discretion of immigration judges in weighing whether to deport legal immigrants who had been convicted of a broad range of criminal offenses under the law.

O'Brien had pleaded guilty to taking $70 from her employer, a restaurant in Herndon, two summers ago. Her employer alleged that she took much more and she ultimately repaid the business $3,000. She served one month of a three-year sentence for embezzlement, with the remainder suspended.

She was meeting her probation officer in Fairfax on Jan. 8 when federal immigration agents pounced. They handcuffed and manacled her, and took her to a regional jail in Portsmouth, where she stayed for three months. Later, at Wolf's request, the government moved her to the Arlington jail to be closer to her family.

Haynes argued that she was not an aggravated felon under the federal law - and not subject to mandatory detention and deportation - because she was convicted of embezzlement, not theft. The threshold for an aggravated felony for embezzlement is $10,000.

The appeals court rejected that argument and ruled that the immigration court had properly found her guilty of theft, which is considered an aggravated felony if a person is sentenced to a year or more in jail.

Joe O'Brien, her American-born husband of 25 years, was so distraught by the decision that he went to the Department of Homeland Security headquarters in Washington early yesterday to appeal directly for mercy.

"It's kind of unbelievable," he said after picking up his wife. "Within the past 24 hours, the blackest despair. It's been quite a turnaround from this time" on Thursday.

Wolf raised the issue early yesterday with Asa Moore Hutchinson, the undersecretary for Homeland Security. He then formally renewed his request for her release in a letter to Michael Garcia, director of the Bureau of Immigration and Customs Enforcement.

Garcia called the congressman on the floor of the House of Representatives yesterday afternoon to tell him that O'Brien would be released.

"I am happy for Mi-Choong and her family," Wolf said later. "I know the past several months have been extremely difficult for her, her husband and her children.

"What has happened was extremely unfortunate," he added. "In this case, the right thing has been done."

Contact Michael Martz at (804) 649-6964 or


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