Because of a vague federal law, Raleigh man faces deportation back to his native Congo over a $50 hat | News Feature | Indy Week
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Because of a vague federal law, Raleigh man faces deportation back to his native Congo over a $50 hat 

It wasn't the baseball hat, per se, that puzzled the defense attorney. It was the logo. If the hat had bore the emblem of a local team—a UNC Tar Heel or Duke Blue Devil—then maybe he could convince a jury it wasn't stolen. But this hat was unique, emblazoned with a grizzly, as in the Memphis Grizzlies, an NBA team not known for its Raleigh fan base.

The defense attorney was discussing the hat with his client, 21-year-old Archie Nakiam. Born in the Democratic Republic of Congo to a family persecuted for their political beliefs, Nakiam had fled to America at age 12. He graduated from Sanderson High School in Raleigh and enrolled in Wake Technical Community College, where he studied electrical engineering. A permanent legal resident on a path to citizenship, Nakiam had no criminal record.

But now, in 2012, Nakiam was in trouble. A Raleigh teenager had been robbed, and his assailants had taken his Grizzlies hat. A half hour later, police discovered a Grizzlies hat in Nakiam's car. Nakiam and his two passengers were charged with robbery with a dangerous weapon, although none was ever found.

Facing several years in prison, Nakiam denied involvement in the crime. But months later, when one of the suspects turned on him, Nakiam accepted a plea offer for reduced charges. He figured he'd avoid prison, serve a couple of years' probation and move on with his college career.

He had no idea he could be deported over a $50 hat.

Suddenly Nakiam's journey to citizenship had taken an unexpected detour. And if things don't go his way in the courts, he could find himself on a plane to the Congo, where he has no remaining ties and barely speaks French or Lingala. If he returns, he believes he could be killed, owing to his family's history.

"He's just like any American kid I've met; he fit right in anywhere" said Karen Rabon, the mother of Nakiam's ex-girlfriend. "He was very caring, nurturing and cheerful. Sometimes he'd come over and cook for us—a hamburger dish with rice and peppers. He was just a good old soul."

His case highlights a fierce nationwide debate about the duties of defense attorneys. Many fail to advise their noncitizen clients about how if convicted, they could be deported. As a result, many Green Card holders who negotiate favorable plea deals dance out of their sentencing hearings, thrilled to receive probation—only to be blindsided when Immigration and Customs Enforcement comes calling afterward.

In 2010, the U.S. Supreme Court attempted to end the confusion by mandating that defense attorneys inform their clients about the specific immigration consequences of guilty pleas, provided that the law is clear. But disagreement over the definition of "clear" has resulted in legal chaos. The Supreme Court's ruling prompted thousands of noncitizens to ask to withdraw their guilty pleas. Nonetheless, they are often deported.

"In many cases I've had to tell people, 'You're immigration toast; you have to go because your attorney messed up,' " said Hans Linnartz, a Raleigh lawyer specializing in the nexus of criminal and immigration law, known as "crim-imm" law.

After his guilty plea, Nakiam, now 24, spent two years in an ICE detention center in Georgia. Recently released, he is back in Raleigh, and his deportation is still pending.

Meanwhile, Nakiam filed a motion to withdraw his guilty plea, accusing his public defender of giving him bad advice. Had he known the plea would trigger mandatory deportation, he would have taken his case to trial, Nakiam's new lawyer the N.C. Court of Appeals last month.

At that hearing, the North Carolina Attorney General's office countered that federal immigration code is a jumbled mess, indecipherable to most criminal lawyers. As such, Nakiam's defense attorney gave him the best advice he could; based on that counsel, Nakiam knew his deportation risks.

Nakiam contends that his case is a model of clarity: According to federal code, theft is classified as an aggravated felony. Noncitizens who commit aggravated felonies "shall" be deported. His lawyer failed to tell him. What could be clearer than that?

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On the afternoon of Feb. 24, 2012, 17-year-old Jocqui Brown was walking near Green Road Park, wearing his Memphis Grizzlies hat, when a black SUV pulled up to the side of the road. Two passengers got out.

"Hey, are you Ceasar?" one said, apparently mistaking Brown for someone else. They mentioned something about the Blood gang, and told Brown to empty his pockets.

According to Brown, one of the assailants carried a handgun; the other brandished a knife. The men took Brown's hat and cellphone, says Brown, and jumped back into the car. The driver sped away. Thirty minutes later, a Raleigh detective spotted a dark SUV near the crime scene. One of the three passengers was wearing a hat. A Grizzlies hat.

The detective pulled the car over. Brown, who arrived with a police escort, identified the men as his assailants, and claimed the Grizzlies hat was his. No weapons nor stolen cellphone were found in the car.

The occupants of the SUV had different backgrounds. For Nakiam, the driver, the future seemed promising—especially after overcoming a difficult childhood in the Congo. His father had been beaten and jailed for his political stance against the Mobutu and Kabila dictatorships. His mother had been persecuted for her Tutsi ethnicity. His uncle was executed by the government. When Nakiam was 9, armed soldiers stormed his house, threatening the boy's life. "They took me to pretty much a closet, and then I had a gun pointed at me," Nakiam would testify.

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Nakiam's father fled to the United States, where he was granted asylum. In 2002, Nakiam and the rest of the family followed, with the legal status of asylee derivatives. They settled in Raleigh. In 2010 Nakiam earned his Green Card. In addition to being a full-time student, he worked for Panera Bread and UPS.

"He's not a bad person," says Emily Rabon, Nakiam's ex-girlfriend. She describes him as kind-hearted and sensitive. "None of this was his fault. At the time of his arrest, it just seemed ridiculous."

The futures of the other two passengers were less promising. Both men had records, including possession of drug paraphernalia, assault, robbery and shoplifting. Nakiam said he knew the men from school.

Nakiam's file was handed to the Wake County public defender's office, and eventually landed on the desk of Deonte Thomas with the office's major felony unit. Affable, gregarious, Thomas had a stellar reputation. He had been a public defender for four years.

The attorney took an immediate liking to the young student, whom he described as book smart, but not street smart. Because of Nakiam's slight accent, Thomas suspected he wasn't originally from America, but he never broached the subject of citizenship.

During three meetings over six months, Thomas told Nakiam he might receive a deal if he testified against his co-defendants. Nakiam declined, maintaining his innocence, even though he couldn't account for the Grizzlies hat in his car. That concerned Thomas. With such damning evidence, he warned Nakiam that winning a trial would be difficult.

Several months later, one of the co-defendants agreed to testify against Nakiam. In a confession to prosecutors, the co-defendant said that no weapons were used in the robbery. "We were drinking," he said. "It was kind of stupid. We were messing with this guy."

When Nakiam learned of his co-defendant's intention to flip, he reversed course, agreeing to plead guilty to two reduced charges: aid/abet common-law robbery, and conspiracy. Thomas went over the official plea form with Nakiam. For the first time, Nakiam revealed he was not a U.S. citizen.

At the time, Thomas wasn't well-versed in immigration law. He hadn't read deportation statutes or consulted with an immigration lawyer about Nakiam's case. He was unsure what "permanent resident" meant. But when Nakiam told him he was Congolese, that eased Thomas' mind. In his experience, Hispanic clients were most likely to face ICE problems. Immigrants from war-torn countries like the Congo were rarely deported because they could be killed in their home countries, he believed. For example, state security forces and other armed groups brutally attack and kill Congolese civilians; according to Human Rights Watch, the situation is "grave."

Here is where the accounts of Thomas and Nakiam begin to diverge. Thomas says he first discussed Nakiam's citizenship with him one month before his scheduled sentencing hearing. Nakiam disagrees, contending that the discussion occurred just 30 minutes before he appeared in front of the judge.

More important, the two men have conflicting recollections about Thomas' advice. Nakiam says when he told Thomas he wasn't a U.S. citizen, the attorney acted surprised, and said, "Immigration is not going to fuck with you."

In Thomas' memory, however, the phrase he used was, "I hope immigration doesn't fuck with you." A guilty plea, he recalls saying, could carry immigration consequences.

During Nakiam's sentencing hearing, the judge asked Nakiam three times if he understood his guilty plea carried deportation risks. Nakiam answered yes each time. He did so, he would later testify, because based on Thomas' advice, he felt assured he wouldn't be deported.

The judge sentenced Nakiam to 19 to 42 months in jail, but suspended it for two years' probation. He was ordered to pay a $50 restitution for the cost of the Grizzlies hat.

Eighteen days later, at 6 in the morning, immigration authorities entered Nakiam's house. They arrested him, and transported him to a Georgia detention center, where he faced deportation proceedings.

The legal groundwork for Nakiam's case was laid in 2001, when a 51-year-old truck driver named Jose Padilla was charged with transporting a large amount of marijuana in his trailer in Kentucky. A Honduran immigrant who served with honor during the Vietnam War, Padilla had lived in the country as a lawful permanent resident for 40 years.

Padilla faced a 10-year sentence. His public defender told him he shouldn't be concerned about immigration status since he'd lived in America for so long. Based on that advice, Padilla accepted a plea deal for reduced charges. But he didn't know transporting marijuana was an aggravated felony, subjecting him to mandatory deportation.

Padilla was placed into removal proceedings. He filed a motion to withdraw his plea, insisting that he would have taken his case to trial had he known about the plea's consequences. The Kentucky Supreme Court rejected his appeal. Ultimately, the U.S. Supreme Court heard Padilla v. Kentucky in 2009.

The case was a game-changer in immigration law, which had grown increasingly harsh for noncitizens.

Immigrants arriving in the U.S. were largely shielded from deportation, until 1917, when Congress passed the Immigration and Nationality Act. That law allowed noncitizens to be deported for crimes of "moral turpitude," which generally referred to dishonesty, immorality and violence. Congress, however, never defined the term, and judges maintained broad discretion over enforcing the laws.

A series of reforms over the next several decades changed the landscape. In 1988, "aggravated felonies" entered the lexicon; such crimes were grounds for deportation, but limited to murder, drug crimes and possession of explosives. More recently, the list has grown to include about three dozen crimes, including theft. As of 1990, judges may no longer sidestep deportation laws. Now, if a noncitizen is convicted of a deportable offense, his or her removal is practically inevitable.

But with the Padilla case, the pendulum swung the other way. In a 2010 landmark opinion, the Supreme Court ruled that for many immigrants, deportation was a "dire consequence," often worse than a jail sentence, and that Padilla's attorney should have known his client's guilty plea would trigger deportation.

"Accurate legal advice for noncitizens accused of crimes has never been more important," Justice John Paul Stevens wrote for the 7–2 majority.

As a result, defense attorneys had to make basic attempts to research immigration law. When the law is not "succinct and straightforward," an attorney only has to tell a client that he could be deported. But when deportation consequences are "truly clear," the court said, "the duty to give correct advice is equally clear."

In other words, if a guilty plea clearly triggers mandatory deportation, a defense attorney must tell his client so.

The opinion was widely hailed by immigration advocates. But Justice Samuel Alito foreshadowed trouble. The legal definition of "clear" is, ironically, vague. Immigration laws are complex, and many deportable crimes fall under broad classifications. In nearly every state, misdemeanors like petty larceny and shoplifting can be classified as aggravated felonies. Both offenses are grounds for deportation.

Alito reasoned that defense attorneys shouldn't be expected to troll through immigration law themselves. Rather, he said, defense attorneys only need to advise their clients that convictions might have deportation consequences, and then refer them to immigration lawyers before negotiating pleas. Otherwise, wrote Alito, "This vague, halfway test will lead to much confusion and needless litigation."

While in the Georgia detention center, Nikiam led a Bible class. He tried to delay his deportation by seeking relief under the U.N. Convention Against Torture. To be eligible, Nakiam needed to prove that he was more likely than not to be tortured. But an immigration judge denied his case. Yet Nakiam's resolve didn't falter, says Karen Rabon, the mother of Nakiam's ex-girlfriend. She traveled twice to Atlanta to testify on his behalf. "He's a strong Christian with huge family values," she attested. Regarding the Grizzlies hat, he didn't know his two passengers intended to rob someone, she said. "He was a victim of circumstance."

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In the fall of 2013, Donald Stephens, Wake County's top judge, heard Nakiam's motion for relief. Stephens had initially rejected the motion, but the N.C. Court of Appeals overruled him, sending the case back for reconsideration.

When Nakiam took the witness stand, his message was blunt: If he were to be sent to the Congo, "I will be killed."

Thomas testified that he never told Nakiam that his guilty plea would result in deportation; he was adamant that he said it could.

Thomas said he didn't wish to break attorney-client confidentiality, but Judge Stephens insisted, threatening to throw out his entire testimony if he refused. At this, Thomas revealed that Nakiam had privately confessed to the hat theft.

"I think he was a good kid," Thomas testified. "I told him ... 'How did you even get involved with this?' And he just said, 'We were being stupid and it was a stupid thing to do.' "

Through his new lawyer, Nakiam declined to comment for this article. Thomas also declined, other than to say, "Archie's a great guy. A person doesn't have to be deported for a stupid mistake."

But legal experts say the law is less forgiving. "In the real world, people who get this kind of conviction pretty much automatically get deported," said immigration lawyer Linnartz, who also lectures at Duke University's law school.

Most defense attorneys are unaware of their obligations, but to properly advise a client charged with an aggravated felony, he said, "a defense attorney should tell him that it is guaranteed that you will be deported."

Linnartz was asked to testify in Nakiam's hearing. The prosecutor pressed him as to whether deportation was truly mandatory. Linnartz conceded that in cases when an immigrant's life would truly be threatened in his home country, there are other avenues of relief: appeals to a federal circuit court, the Board of Immigration Appeals or a local immigration director for a discretionary stay. But these offer only temporary reprieve, said Linnartz.

"There is about a 99.9 percent chance likelihood you will be deported," said Linnartz. "I'd say. 'You know, we're just waiting for the inevitable to happen, rather than dealing with a possibility.' "

Judge Stephens again denied Nakiam's motion for relief. He ruled that Nakiam had several other ways to avoid deportation, and that Thomas had properly advised Nakiam that he "could" be deported. When the law is ambiguous, that is sufficient.

Claims like Nikiam's often fail in the local courts. Many defense attorneys shy away from specific advice, and instead give generic warnings to protect themselves from claims of ineffective counsel. But defendants who successfully petition higher courts to review their cases dramatically increase their chances to stay in the U.S. In the last few years appeals courts in Florida, Texas, Washington, New York and Massachusetts have withdrawn the guilty pleas of immigrants charged with crimes such as rape, burglary and cocaine possession with intent to distribute.

Since his release from the Georgia detention center, Nakiam is trying to have a normal life. ICE recently flagged the Democratic Republic of the Congo as one of nine countries particularly slow to comply with providing travel documents during removal proceedings. In theory, deportation to the Congo could take decades. Nakiam's supporters are hopeful. "I really struggle with the fairness of this," says Karen Rabon. "It's just an awfully severe punishment when we hear about murderers who are set free."

In her living room, Rabon displayed a series of uplifting text messages Nakiam had to sent her. "Be encouraged today b/c God is taking you to a place of blessing. Don't focus on your circumstances. Forcus on your God b/c he is not limited by your limitations."

During last month's N.C. Court of Appeals hearing, Assistant Attorney General Joseph Hyde argued that because immigration law is ambiguous, Thomas met the minimum requirement in advising his client he "could" be deported.

Hyde then cited Nakiam's admissions during his plea. "He said it three times, on the record—three times—'I could be deported.' "

Nakiam's new attorney, Dan Blau of Raleigh, countered that the statutes were clear, and that instead of reading them, Thomas provided Nakiam with an uninformed guess about his future stakes.

"There are some defendants, like Archie Nakiam, for whom deportation can be a life-altering, potentially life-threatening event, for whom being able to stay in the United States is the most important consideration," Blau said. "These defendants need informed, accurate advice."

The court is expected to issue its opinion later this year.

This article appeared in print with the headline "Hat trick"

  • If he returns, he believes he could be killed, owing to his family's history.

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