The U.S. Department of Homeland Security is moving to deport a 26-year-old Hawaii resident with Down syndrome and his younger brother — despite the fact that his parents are here legally and there would be no family in Korea to take care of him.
The family arrived in Hawaii in 1993 and overstayed their original tourist visa. Eleven years ago a relative petitioned for the family to be granted permanent residency in the United States via a 1998 provision of the Immigration and Nationality Act.
Just last year, parents Duck and Ok Ran Kang had their applications approved. However, during the decade they waited for their applications to be processed, Hee Chun Kang, who has the mental capacity of an 11-year-old, and his 23-year-old brother, Hyo Chun, both "aged out," essentially leaving them illegal aliens in the country in which they were primarily raised.
The family declined to be photographed.
The deportation of the brothers is a prospect that reduces mother Ok Ran Kang to tears each day.
"There is no one in Korea to take care of them," she says.
The Kangs’ attorney, Warren Kim, does not dispute that his clients overstayed their initial visa. However, he has asked Immigration and Customs Enforcement to defer prosecution of the two young men "based upon humanitarian reasons and other mitigating circumstances."
While such deferrals are usually hard to come by, the Kangs are worthy of special consideration, Kim said.
"Right now everyone is just ‘doing their job,’ and no one is looking at the big picture," Kim said. "We need to think about what is right. This family is caught in a quagmire of policies and laws."
Hee Chun Kang isn’t much interested in the theoretical vagaries and arcane language of the law. And so, trapped in an attorney’s office on an otherwise gorgeous afternoon in Honolulu, the 26-year-old throws back his head and surrenders to a sonorous slumber, leaving all of that weighty talk for his family to decipher.
Were it a normal weekday afternoon, Kang would be at his vocational training program at Lanakila Pacific, learning simple skills that may one day provide him a measure of independence. Later, he would take the Handi-Van back home to his parents and younger brother and spend a peaceful evening listening to music (he loves rap), watching television or using the family computer.
Kang’s family agrees that it is a decent life for a young man forever frozen at the mental age of 11. For, while Kang has learned to do certain things for himself, he remains largely dependent on his family for care and comfort.
Kang enjoys singing karaoke, swimming and bowling. At home he helps his parents wash and fold laundry or makes his own bead necklaces. He gestures toward his mouth or says "hungry" when he wants food. He cries when he is upset — or when a piece of music stirs his emotions.
Kang’s parents say they have done their best to provide a good life for both their children. They also acknowledge that part of that effort included violating the terms of the temporary visa by which the family first arrived in Hawaii.
The brother, Hyo Chun Kang, said he is worried about being forced to return to a country he has not seen since he was 7. But he said he is more concerned for his older brother, who speaks mostly English and would not have the same access to the necessary resources that he has in Hawaii.
Hyo Chun Kang, who attends community college, said he is eager to have his immigration status determined once and for all.
"I want to join the military or be a policeman or work in automotive, but I can’t move forward until this is resolved," he said. "I’m stuck."
Representatives from ICE could not be reached for comment.
Hee Chun and Hyo Chun were 10 and 7 years of age, respectively, when the Kangs arrived in Hawaii on Oct. 20, 1993. The family was admitted on a nonimmigrant visitor visa that expired on April 19, 1994, but they never left.
Duck Kang said he intended to return to Korea but chose to stay in large part because he felt Hee Chun would have a better life here.
"Korea is not as progressive as the U.S. is for people who are handicapped," Kang said via Kim, the attorney. "It has gotten better in the last five or 10 years, but not enough."
The Kangs say it is unlikely their son would find the type of nurturing and support he receives at Lanakila, where he has taken classes in botany and performing arts and where he is scheduled to take part in an Elvis Presley-style musical play.
Since coming to Hawaii, Duck Kang has worked a series of jobs to support his family but has not sought public assistance. He now operates his own business.
In 1998 the family saw an opportunity to legalize their presence in Hawaii via Section 245 (i) of the Immigration and Nationality Act. The provision allowed for people who entered the United States illegally or who overstayed their visa to become legal residents provided they meet eligibility requirements and pay a $1,000 fine.
Duck Kang’s sister, a U.S. citizen, petitioned for the entire family just before the Jan. 14, 1998, deadline. It would take more than a decade for Duck and Ran Kang to have their application approved. And while the family waited, Hee Chun and Hyo Chun both passed the age of 21.
On Jan. 26, 2009, Hee Chun and Hyo Chun filed for an adjustment of their immigration status. Their applications were rejected 10 months later. In January of this year, both brothers were notified that the Department of Homeland Security was pursuing removal proceedings against them.
Both had initial hearings earlier this year, and both will return to court on March 25.
Kim said the brothers should be grandfathered in through the family’s original 245 (i) petition, and he is asking ICE to defer their cases until a determination can be made in a separate petition for adjustment filed last week by Duck Kang.
Timing could work in the Kangs’ favor.
Kim notes that under the Obama administration, the Department of Homeland Security has been reviewing deportation cases and dismissing or deferring some in which the defendants do not have serious criminal records. While critics have argued that this constitutes a de facto amnesty program, others say it is a necessary step in dealing with the backlog of cases clogging immigration courtrooms around the country.
Kim said he has had constructive conversations with ICE regarding options that might allow Hee Chun and Hyo Chun to remain in Hawaii. Each, however, comes with a measure of risk. In the case of deferrals, the agency typically obtains but agrees not to immediately execute a removal order.
"It’s a lawful procedure that (ICE) can use at their discretion," Kim said.
In addition to the deferral, Kim said, he will ask for a continuance at the brothers’ next hearing. That, he hopes, will allow the U.S. Citizenship and Immigration Service enough time to approve Duck Kang’s petition for adjustment.
"These two young men are not criminals or terrorists. Is it in the best interest of the department to devote their time and resources to separating them from their family? I hope they’ll see that this family needs to stay together."