Everlee Wihongi was detained by ICE when re-entering the US on a Green Card a month ago, following a family holiday in New Zealand.
By Lucy Xia and Paris Ibell of RNZ
The lawyer of a New Zealander held by the United States’ Immigration and Customs Enforcement (ICE) believes she was transferred from California to Arizona because Arizona takes a harsher view of federal immigration law.
Everlee Wihongi was detained by ICE when re-entering the US on a Green Card a month ago, following a family holiday in New Zealand.
Wihongi was originally detained and held in Los Angeles, but was transferred to a different facility in the Republican-voting state of Arizona.
Lawyer Marc Christopher told RNZ he had been scheduled to talk to her on Saturday afternoon (local time), but had not been notified that she was transferred the night before.
“When I logged in to speak with her, I had nothing but an empty chair there in front of me.”
Christopher said he never used to see transfers like this, but under the Trump administration, it was happening frequently.
He said it seemed the Government was intentionally transferring detained immigrants to states with courts that would interpret federal law in a way that was less favourable to immigrants.
He pointed out the Government was heavily investing in detention facilities in southern Republican-voting states, such as “Alligator Alcatraz”.
Transferring clients also made it incredibly challenging for him to communicate with them, including Wihongi, he said.
“I can’t meet with them hardly in person, and the ability to have a Zoom call with them is very limited. I’m normally limited to 20 minutes at a time, and it takes a couple of days to set up an appointment.”
Christopher said he was confident Wihongi had been charged at her first appearance before a judge on April 28, but those charges had not been communicated to her.
“They have made allegations against her as far as conduct ... but they have not pointed to the law, the United States law, that makes her removable.”
The conduct allegation that has led to Wihongi’s detention relates to a decade-old conviction for a felony offence of marijuana possession.
Foreign Minister Winston Peters previously claimed she was detained because she had lied about that offence.
But Christopher said she had been detained simply because she had been convicted of that offence – not because she had lied about anything.
That was because of a nuance in US law that meant the previous conviction did not require her deportation, but it would prevent her from re-entering the country, should she leave, he said.
“Let’s say Everlee had remained in the United States and had applied for her citizenship, she would have been able to get her citizenship and then travel in and out of the country, but because she travelled out with a controlled substance violation before she got her citizenship, she’s prohibited from coming back in.”
Wihongi has a court date to have the earlier underlying felony conviction vacated, which could secure her release, Christopher said.
That was set to take place in the state of Wisconsin on May 21.
The basis of that appeal was that Wihongi’s attorney, when she faced the marijuana possession charges, told her that a conviction would not affect her immigration status.
She pleaded guilty to the charge based on incorrect advice, Christopher said.
“Under our constitution, if that happens, a person is able to then vacate their conviction.
“In addition to this, shortly after Everlee’s conviction, the attorney was disbarred for a number of reasons, foremost for lying to his clients, for forging documents and forging court orders.”
If that conviction was vacated, the US would no longer have any legal basis to detain her, and she would be released “relatively soon after”.
If they were unable to vacate that underlying conviction, the next step in the immigration case would be to apply for something called a “cancellation of removal”, Christopher said.
“It’s a provision under our statute, which allows permanent residents who have committed deportable offences to remain in the United States.”
But they would need to prove that Wihongi was eligible for that relief, and that was challenging to do currently, as the courts had not stipulated the exact charges she was facing, he said.
It was not yet clear whether she would be charged for a controlled substance violation, or as an aggravated felon.
He explained that under Wisconsin law, possession of marijuana counted as a felony if it was a second offence.
Wihongi had previously been convicted of possession of drug paraphernalia, so when she faced the marijuana possession charges, she was convicted of a felony in Wisconsin.
But federal law applied differently.
Under federal law, a controlled substance possession charge would only be a felony if it was the second drug possession charge, and the paraphernalia charge would not be considered.
If Wihongi was to be charged as an aggravated felon, he would argue that the federal law should be applied, not the Wisconsin law, Christopher said.
“That’s the nuanced argument that we’re going to make. I don’t even know if I need to make the argument because they haven’t even set forth that that’s what they’re charging [her with].”
Another challenge Wihongi was facing was whether ICE would allow her to attend the Wisconsin hearing.
“The court is trying to work with the ICE facility to allow Everlee to appear and testify by video,” Christopher said.
“The court will allow it, but oftentimes the ICE facilities are reluctant to co-operate with state courts.”
It was very common for people detained by ICE to not be allowed to attend their hearings in any fashion, Christopher said.
He was worried this would impact her chances of having the underlying possession conviction quashed.
“Normally, the judge and the district attorney will want to hear testimony directly from the defendant.”
- RNZ