Kairi Shepherd was an orphan living in India when a Utah woman adopted her in 1982 — a seemingly good turn of luck for the 3-month-old, which included her obtaining legal permanent resident status in the United States.
But when she was 8, her adoptive mother died of cancer. When she was 17, she was arrested and convicted of felony check forgery to fuel a drug habit. Now 30, she is facing likely deportation after a 10th Circuit Court ruling Tuesday that upheld the federal government’s right to remove her from the country.
Judge Scott Matheson, in a 23-page decision, wrote the court simply didn’t have jurisdiction over determining Shepherd’s legal status.
Instead, Matheson denied her petition based on a series of technical procedures, including a failure to file a second appeal through the Board of Immigration Appeals as well as Shepherd’s attempt to get her petition reviewed prematurely.
Shepherd’s lawyer, Alan Smith, said he was disappointed the court didn’t tackle a “mistake” made by the federal government that allowed an immigration judge to uphold his client’s legal status after she provided a birth certificate, legal adoption papers and the argument she qualified for citizenship under the Child Citizenship Act of 2000.
The next day, however, government lawyers discovered she missed qualifying for the Child Citizenship Act by a few months and appealed the immigration judge’s ruling.
The government was successful.
“They got a second bite at the apple,” Smith said. “If we let people re-litigate or attack again what they lost in the first round, you go around and around and around and there will never be any end to it.”
Smith said he’s still considering options, though at this point the only recourse is an appeal to the U.S. Supreme Court.
U.S. Department of Justice officials did not comment on the ruling.
Roger Tsai, an immigration attorney in Salt Lake City, said the case raised his concern over the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that allowed deportations of legal permanent residents convicted of nonviolent crimes.
“That was a critical pivot point,” Tsai said. “Had that not been put into place, she likely isn’t facing deportation.”
Shepherd was convicted in 2004 in 3rd District Court on forgery charges — a crime of “moral turpitude” currently covered under the 1996 immigration act.
According to the Immigration Policy Center, it is estimated that 10 percent of all deportations are legal permanent residents who have been convicted of crimes, Tsai said. According to U.S. Immigration and Customs Enforcement agency, more than 396,000 people were deported in fiscal year 2011.
ICE spokeswoman Lori Haley said Tuesday that once a final order of removal is upheld in court, the agency must determine whether the country of origin will admit the person being returned.
“Completing the removal process can take varying amounts of time, depending on the country involved and the circumstances of the case,” Haley said.
Shepherd’s case first came to light in 2008 when The Salt Lake Tribune wrote about her case.
According to her sister, when her mother died, she was passed between older siblings. At 17, she was introduced to meth by a co-worker. On top of that, she was diagnosed with multiple sclerosis. She served several months in jail and was placed on probation.
“Yes, she made mistakes. And she should be held accountable. But she has been,” her sister Kristi Tafoya said at the time. “Why aren’t adopted children protected?”
The short answer is because her mother — and later legal guardians — failed to file the proper paperwork in time.
Tsai said had the paperwork been filed and with naturalized citizen status, it is a remote possibility that she could’ve been deported for her crime.