POSTED: 9:07 a.m. HST, Mar 9, 2013
LAST UPDATED: 9:08 a.m. HST, Mar 9, 2013
A Chinese immigrant who spent most of her adult life fighting to soften the fallout of a felony conviction in Hawaii plans to visit her parents for the first time in 22 years following an unusual pardon from President Barack Obama.
An Na Peng of Honolulu was convicted in 1996 at age 26 of helping immigrants cheat on tests to earn U.S. citizenship. Since then, the legal permanent resident has been fighting deportation proceedings, staying in the country with her family to avoid the chance they could be split up if she left. White House officials told her lawyer this month that Peng would be pardoned, clearing the way for her to regain full rights as a legal permanent resident.
Peng's lawyer, Maile Hirota, told The Associated Press that during that 17-year stretch, Peng always believed her case had merit.
"She never lost faith that she would win," Hirota said.
Through Hirota, Peng declined an interview with the AP. Hirota said Peng wants to maintain her privacy.
Peng was one of four employees arrested at Friendly Teaching & Testing Service, a company that tested immigrants in their knowledge of English, U.S. history and government as required for citizenship. Authorities said at the time that the employees guaranteed applicants they would pass the test and the company charged higher fees than other testers because of the promise.
Peng was convicted of conspiracy to defraud the Immigration and Naturalization Service and was sentenced to only two years' probation and a $2,000 fine — no jail. A federal judge called Peng a "minor participant" in the scheme and sentenced the company's manager to four months in prison.
Hirota, who didn't represent Peng during her initial trial, said Peng worked at the testing company two months and was remorseful about what she did.
"She didn't really understand the gravity of what she was doing," Hirota said.
Peng took the case to trial because she believed she had little to lose, and was told by prosecutors that even if she was convicted, she could still apply for a waiver from an immigration judge to avoid being deported, Hirota said. She had gotten married and legally moved to the United States five years earlier, and had two young children.
Hirota said the judge who sentenced Peng thought the fine and probation would sting hard for Peng without breaking her children from their mother.
But in an unexpected twist, immigration laws changed as Peng awaited trial and sentencing, putting her in danger of being deported and taking away her ability to apply a waiver, according to a 9th U.S. Circuit Court of Appeals opinion last year. Immigration officials began the process of deporting her and Peng grasped at limited options — a struggle that continued until last year and Obama's March 1 pardon.
Hirota said Peng applied for the presidential pardon in 2006, the first year she was eligible.
She also took her appeal to the appeals court, which partially sided with Peng in March last year, allowing her to apply for a waiver and have her case reconsidered by an appeals judge.
Two months before that opinion, Hirota told White House officials checking on the pardon case that she thought it unlikely the court would side with Peng.
Beth Werlin, deputy director of the Legal Action Center at the American Immigration Council in Washington, said the pardon means nothing for other cases, but the appeals court opinion sets a precedent for other immigrants.
"It opens up the door for some people to plead their case," Werlin said.
Werlin said the number of cases affected now may be small, but Peng's case could help other immigrants later as immigration laws change and create unique circumstances.
Hirota said she believes Peng won the pardon — Obama has issued relatively few since taking office — because of the merits of her case. The White House didn't offer a reason for the pardon when it was announced along with pardons for 16 others in 13 total states.
But the pardon allows Peng to move on from a case that's hung over her head 17 years and caused financial stress for her family.
"She just wants to do what she always wanted" and pursue the American dream of raising her family and pursuing available opportunities, Hirota said.
Hirota said Peng is already in the process of applying for U.S. citizenship.