Jonathan Shin was up by 7:30 the morning of Sept. 11 this year–never mind he had only slept about four hours. The Chapman University law student skipped breakfast, his appetite zapped by nerves. He was due to appear at 1 p.m. at 606 S. Olive St. in Los Angeles. The Brutalist-style office building houses Los Angeles Immigration Court and the judges who decide whether people in the greater LA area can stay in this country or get deported.
Shin rode shotgun as his father drove from Irvine to downtown LA, the air conditioning on full blast. As if a mantra, Shin repeatedly drew in his mind the picture he'd paint of his client, a 59-year-old Korean immigrant the U.S. government wanted to deport. He also mapped out the various rebuttals he expected the judge would throw back.
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The mental exercise eventually lulled the 31-year-old to sleep. When he awoke, Shin found out they had arrived an hour early. But already waiting at the outdoor café on the ground level was his client, Young Joon Kim, and the man's family–his wife and two U.S.-citizen daughters, Abigail, 14, and Sally, 25. Shin's law professor, Richard M. Green, was also there to see his pupil shine. Shin assured Kim it would all be okay–even if they lost, they would appeal.
After his pep talk, Shin took a swig of Coke, drew in a deep breath and rose from his seat. His wife, Judy, there for moral support, gave him a kiss and a hug, and he said a little prayer. The Shins and Kims walked into the building. The elevator doors opened, and he reached for the button for Floor 16.
Three years ago, when he first learned of Kim's predicament, Shin wasn't even in law school. He was still applying to graduate programs, among them Chapman's Dale E. Fowler School of Law, where he is now in his third, final year.
Shin, whose family moved from Texas to California when he was 6, has moved beyond mock trials and in-class debates to handle an actual case for a person in real jeopardy. It has spanned most of Shin's law-school career and affirmed his decision to pursue this field, even though, in his words, his classmates thought he was “crazy” for taking on the case.
“Chutzpah is the word that comes to mind,” quips Green, an adjunct at Chapman and partner and chairman of the immigration practice group at Irvine-based Carothers DiSante N Freudenberger. He has also served as Shin's supervising attorney in the case, a requirement under the California Rules of Court for law students appearing on behalf of someone. “I'm surprised he took it because, honestly, I would never have done anything like this when I was a law student.”
Though it's a cliché to point out, it's necessary to do so: Shin is no ordinary law student. First, he entered rather late–eight years after obtaining his bachelor's degree in sociology from UC Irvine. Despite being nearly half a decade older than his peers, Shin is on Chapman's Moot Court Competition and Advanced Dispute Resolution teams; a founder and president of the Korean American Law Students Association; a vice-president of the Business Investors Law Society; a big-sibling mentor and student ambassador at the law school; and the founder of a young-adult ministry at his church. He also works at Irvine business-litigation firm Stephens Friedland LLP and is starting a business in which he purchases used cars at auction and flips them.
Shin took on Kim's case pro bono after his father, James Shin, a pastor and founder of Irvine's International Grace Ministries, urged him to use his smarts and compassion for others to help Kim, a longtime family friend and church member. “It was a very difficult, almost impossible case,” Pastor Shin says. “I did some research, and I found out that . . . [others similarly situated] were evicted or kicked out of country. I thought Mr. Kim needed someone who was going to be very diligent and very personal, caring.”
Kim, who lives in Tustin with his wife and younger daughter, is as reserved and quiet as Jonathan is personable and demonstrative. The devout Christian speaks little English but is a humble and decent man, according to those who know him, always industriously volunteering at the church. “He's not a person of many words since I've known him,” the younger Shin says, “but he's the Korean father that always wants to provide.”
Kim is also a convicted felon. Though his offense took place two decades ago and he hasn't had any run-ins with the law since, in the eyes of the U.S. government, whose rate of removing foreign nationals with nonviolent crimes to their name has spiked in recent years, Kim is a deportable South Korean.
“There's a statute of limitations for so many other things, but there's no statute of limitations for this,” Shin says. “The government can play ball whenever it wants. My client had the settled expectations that he paid his dues.”
After immigrating to the U.S. in the late 1980s at age 31 and receiving a green card in 1991 after marrying his wife, Seung Hee, Kim began selling T-shirts and shoes at an indoor swap meet in Los Angeles. Although he made ends meet, a neighboring vendor introduced him to a more lucrative method of profit: peddling fake luxury handbags with labels such as Chanel and Louis Vuitton, the items often imported from South Korea.
The steady cash flow, which raked in as much as $100,000 in revenue per year, was enticing to the small business owner, husband and, by then, father–not necessarily to fund an extravagant lifestyle, but as security for his family's future. “I came here to make money,” says Kim, as translated by Shin's wife. He's dressed in a plaid shirt and jeans while sitting in the small “healing room” at International Grace Ministries. “I wanted to succeed as a businessman. Back then, everyone in Korea wanted to come to America because Koreans viewed America as the land of hope and opportunity.”
Kim peddled counterfeit goods from 1992 to 1995, when an undercover sting operation nabbed him. He was arrested early one morning at his then-home in Diamond Bar. The feds charged him with conspiracy to defraud the United States, to which he pleaded guilty at the advice of a public defender. On May 6, 1996, a federal judge sentenced Kim to six months at a community corrections center, a $10,000 fine and five years' probation.
It was three months into his stay at the halfway house when Kim says he discovered God. A steady knocking noise awoke him around 5:30 a.m., and “I came out to the common area, and I saw all these people come out of their room,” he recounts. “They looked really loving, and I just wanted to hug them. All of a sudden, I was very happy.”
For the next 24 years, Kim focused on family and faith. Although he had to foreclose on his home, he got a job working at a fine-jewelry casting company. He volunteered at his church. His wife gave birth to a second daughter. And he traveled to South Korea on two separate mission trips without incident. But it was a third trip that led to Kim facing deportation.
In August 2010, Kim learned that his 83-year-old father in Korea had passed away after a brain aneurysm. He booked a flight to South Korea so he, the eldest of three children, could bury him. Upon returning to the U.S., Kim handed his passport and green card to a U.S. customs official. The employee looked at the documents, paused and asked Kim to follow him to a room.
Kim was confused: He'd paid his dues for his prior conviction, and the government had recently renewed his green card. Yet immigration authorities questioned Kim for five hours–as his wife, two daughters and Pastor Shin waited in the welcome area at LAX–about his conviction. Through a Korean Air employee providing translation services, they asked whether his previous crime was a felony or misdemeanor. Though his federal offense was classified as an aggravated felony, Kim said it was a misdemeanor.
Finally released, Kim was handed a notice to appear in LA's immigration court within a month for deportation proceedings. He retained an attorney, but the man was not helpful; he asked Kim the same boilerplate questions and charged an exorbitant fee.
“I had given up,” Kim says of the time. “I had hated going to court. I didn't want to think about the situation. I was this close to saying [to the judge], 'Can you just make a decision? If you're going to deport me, deport me.' Because this had been so dragged out, I grew numb to it. I just wanted it to end.”
During this time, Kim was diagnosed as diabetic. His eldest daughter, Sally, decided to move up her wedding date in case her father was not in the country to witness her marriage. The case dragged on for two years, with the outcome still pretty much set: deportation.
James Shin thought his son could somehow help.
Jonathan initially balked at his father's suggestion. He was a legal novice, barely enrolled in law school. If he messed up, the consequence would be severe. But he was fond of Kim–had seen his daughters grow up, knew him as “Uncle Joon” and didn't want to see it all taken away.
“I wanted to help him because I found it fundamentally unfair for the government to convict Mr. Kim, have him serve his time and pay the costs for his crime, then allow him to stay in the U.S. and build a family all while building his expectation of remaining in the U.S.,” Shin says.
He adds: “To me, it feels like a game: 'Here, plant your roots in our country, and once you have, we're gonna pluck them all out.'”
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The dining room table in Jonathan and Judy's one-bedroom Irvine apartment turned into a de facto work desk, covered with legal papers about Kim's case. A planned trip to Napa Valley for the couple's second wedding anniversary saw Shin mostly hunkered down in the hotel room, preparing for a preliminary hearing. He had to reschedule a final exam to attend another hearing.
Shin, who plans to start his own law firm after he graduates next year and passes the bar, admits he gets lost in his work. He'll sit down at his computer and start writing a brief until he realizes it's 6 a.m. Law professor Green recalls receiving draft pleadings from Shin via email time-stamped at 2:30 a.m.
Beyond the personal significance of the case, Shin was facing the leviathan that is immigration law and the United States government's current dragnet tactics. Removals of foreign nationals have reached an all-time high under the Obama administration. According to the Bipartisan Policy Center, the number of deportees that U.S. Immigration and Customs Enforcement (ICE) dubs “criminal aliens”–or immigrants convicted of crimes–has nearly doubled, from 31 percent to 59 percent between 2008 and 2013. That has sped up the rate of removals for even nonviolent offenders.
“To be perfectly honest, the fact that Mr. Kim was put into removal proceedings at all represents the post-9/11 mindset of the immigration authorities,” Green says. “It's unusual for a person to have only committed one crime and for it to lay dormant for so long and for removal proceedings to be instituted. A bit of equality, fairness and mercy has evaporated out of the space.
“Now, a somewhat zero-tolerance mindset has taken over the authorities and turned into something of a numbers game,” the attorney adds. “How is the [Department of Homeland Security (DHS)] going to justify before Congress the billions and billions of dollars they get every year?”
In 2004, the number of people removed from the U.S. for a prior offense was 92,380. By 2013, that number swelled to 198,394, according to DHS figures. Accordingly, the budget for the U.S. Department of Justice division that handles immigration court proceedings–the Executive Office for Immigration Review (EOIR)–has increased from $147 million to more than $300 million between 2000 and 2014. (In California alone, the court backlog of immigration cases reached 445,000 as of April.)
In Kim's case, the biggest hurdle wasn't showing that he was a rehabilitated person of good moral standing who ought to remain in the U.S. with his family. It was proving he was eligible for release from his deportation order according to a 212(c) waiver under the Immigration and Nationality Act. The law, when it was still around, allowed any green-card holder in a removal proceeding who had been in the U.S. for seven consecutive years, had not been convicted of an aggravated felony for which he served five years or more and committed no other crime, to apply for relief and avoid deportation.
But the law was narrowed, then ultimately struck, with the respective passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That meant those put into removal proceedings after the law was repealed couldn't be afforded its protection even if they were arrested and convicted before it went away–and Kim was unfortunately stuck in this limbo.
Litigants who considered this unfair argued for retroactive application of the law; the issue reached the U.S. Supreme Court, which held in 2001 it could be retroactively applied and further affirmed the decision in 2011. The question in Kim's case was whether he was eligible. The cutoff date was April 24, 1996, the date AEDPA was enacted. Kim had been convicted on May 6, 1996, after the conceivable cutoff point.
Shin strained to find a loophole, poring over criminal dockets; Green frequently helped. Earlier this year, after a three-hour session in Chapman's law library, they finally found it: a Feb. 28, 2014, decision by the Board of Immigration Appeals that clarified any confusion over the issue. Matter of Abdelghany, in keeping with Supreme Court precedent, held that a deportation waiver was as equally available to those found guilty after trial as to those who pleaded guilty. By that same token, even though Kim was convicted in May 1996, his plea of guilty was entered two months before the April 24, 1996, cutoff, making him eligible for retroactive application of the waiver. “We saw he had pled in February [1996], and it was 'Eureka! We have found the fact.' We made a little noise in the library,” Green says.
Shin wrote a brief outlining the argument. But he wouldn't have to defend it in court because the government's attorney, Brenda Chung, stipulated that Kim was eligible for the waiver. “Once we won that [this past March], I remember being completely elated,” recalls Shin. “We took this dead-in-the-water case, revived it and said, 'We've got 50 percent.'”
With the hardest part over, now it was just a matter of getting a judge to grant the waiver. That part is sometimes the hardest because it's completely discretionary. The court alone determines whether positive factors outweigh the bad, considering things such as one's family ties, seriousness of the past offense and the positional hardship on family if one is deported. Framing that picture of rehabilitation relies heavily on an attorney's questioning of his client, eliciting the information that will sway a judge the most.
“I was more worried about the tactical ends of a law student giving direct examination for the first time and having a judge who was interested in digging into aspects of the criminal case that neither I nor Jonathan nor Mr. Kim wanted to talk about,” Green recalls.
On the eve of the hearing, Shin went to Kim's home, staying up with his client long past midnight to prep him on his testimony. Shin relayed to Uncle Joon the benefit of appearing human and relatable–something tangible that the court might consider. “Even prepping him for trial, I had to let him know, 'It's not a bad thing to be expressive, as long as it's not false,'” the student recalls. To elicit a more emotional response, he asked Kim about his favorite love song or poem, his wife's favorite color and favorite food–anything to give Kim a chance.
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Everyone rose as LA Immigration Court Judge Jan D. Latimore entered Courtroom H on Floor 16. At the front left table, Shin, flanked by Kim and Green, tried desperately to keep his cool.
Kim's family, Pastor Shin and other church members who planned to testify as character witnesses were asked to leave the courtroom. Kim placed court-provided headphones over his ears to follow along with the rapid translation by a court interpreter.
There is no witness stand or lectern in immigration court, so Shin questioned Kim while seated next to him: Where were you born? When were you born? When did you first enter the United States? How did you enter? Do you have any children?
Then he went into his client's history of arrest and conviction.
During this part, Latimore interjected, probing Kim about the specifics of the sale of the counterfeit bags. “Were you operating the shipments on your own?” she asked. “How many times did you fly back to Korea? How much were you making per year?”
Kim grew nervous. His hands were shaking. Shin reached under the table and put a hand on Uncle Joon's right knee to calm him, as he had explained he might do the evening before.
This was supposed to be the easy part: Shin would show the court the strong moral fiber of his client, how he had committed no crimes in the past two decades, how he was an upstanding member of his church, that he was an expectant grandfather. But the judge's queries about Kim's sale of counterfeit goods planted a seed of doubt in his mind. “My plan was to talk about the good things, then the bad things, then go to the good things,” Shin recalled later. “I went into the good, went into the bad, and then got stuck in the bad. On a scale of 1 to 10, I thought it was a 4.”
Kim asked Latimore to repeat certain questions more than once. How much were you making from these transactions? Why do you think you did what you did?
“At that time, I was just focused on making money, just quick money,” Kim responded.
“So it was more or less greed,” the judge shot back. “Why do you think you should be given the opportunity to hold onto your green card and remain in this country?”
“I realized I had been neglecting my family. . . . I want to really be loving to my family, and I turned over a new leaf because of my religion,” Kim responded. “I want to live my life with integrity, honesty and faith.”
Latimore then summoned Kim's family into the courtroom. As the three women stood beside one another, the judge told them directly she would grant Kim a waiver from deportation. “He told me that he's really given his life to God and that he will never engage in this again,” Latimore stated. “But if anything [else] happens, there will not be a second chance.”
To Kim's wife, the judge added, “He said he really loves you, so it sounds like things are great. This case is granted.”
The judge relaxed into a smile.
Kim didn't even hear the decision as it was being issued because the translation coming through his headphones was muffled. But he looked behind him and saw Judy crying. He noticed Jonathan smiling and saw his daughters hug his wife.
“I'm thankful to God,” a smiling Kim said immediately after the hearing, his family encircling him. A week later, with more time to reflect, he praised Shin. “I knew Jonathan since he was a small child, and I'm really proud of him.”
But the law student's efforts aren't over. With Green's help, Shin will seek a presidential pardon so Kim can become a U.S. citizen. “In the event this were to happen, [Kim] wouldn't be subject to deportation,” he says. “He is at home in the U.S. and guaranteed to stay here no matter what.”
