Immigration law delays plans for transplant Revision in 1996 makes misdemeanor an 'aggravated felony'

August 13, 1998|By Rafael Alvarez | Rafael Alvarez,SUN STAFF Sun intern Rachel Elbaum contributed to this article.

Glenston L. Pinnock pleaded no contest to stealing $59 worth of drapes from Sears in 1994, an unfortunate mix-up, the Jamaican native said, that is complicating his brother's need for a new kidney.

When Congress reformed U.S. immigration laws in 1996, it not only made less serious crimes grounds for deportation, but made the law retroactive.

Many of those affected have been border crossers, but others were here legally, like Pinnock, until their pasts caught up with them.

Pinnock's brother, Everton Henry, lives in Yonkers, N.Y. He lost both his kidneys to end-stage renal disease and ndergoes dialysis several times a week.

Pinnock -- Everton's only living related potential donor, according to doctors -- has until Tuesday to leave the country. Immigration and Naturalization Service officials said yesterday the decision cannot be appealed. But the interpretation of the law, which led to his forced exit, is being litigated.

Under immigration laws, Pinnock's shoplifting conviction is defined as an "aggravated felony" because he received a sentence -- unsupervised probation -- of more than one year. Under criminal law, it is a misdemeanor.

"The law is very harsh, although some of it is justified," said John Pinnock, a Pimlico-area businessman and Glenston Pinnock's uncle.

"I don't think the law was meant for somebody like Glen," he said. "It was meant for violent drug dealers and undesirables. He is not an undesirable."

According to the INS, 111,794 aliens have been forced to leave the United States under the law.

"At home, it will be harder for me" to make a living, said Pinnock, 35, a laborer who arrived in the United States in 1988 and has worked on and off at Arlington Cemetery of Chizuk Amuno Congregation, on West Rogers Avenue, since 1990.

Pinnock said a friend he was with at the Woodlawn Sears store on Nov. 7, 1994 had stolen the drapes and shoved them into his arms when store security approached.

Pinnock said he was arrested when he tried to hide the drapes.

Although tissue work has not begun to see if his kidney would be a good match for his 34-year-old brother, they share the same blood type -- O negative. Because Judge Bruce M. Barrett allowed Pinnock the lesser penalty of going home voluntarily instead of being deported, Pinnock will be able to return to the United States on visits, if his kidneys are found to be a good match for his brother.

"I think the judge felt strongly that this was basically a nice guy," said Blaine L. Gilbert, Pinnock's attorney.

"We're stuck with a crazy law where a person [who shoplifts] is treated the same way as a violent criminal," Gilbert said.

Lucas Guttentag, director of the American Civil Liberty Union's Immigrants' Rights Project in San Francisco, said the ACLU believes that "the law is not meant to apply retroactively -- this is not what Congress intended.

"We think the attorney general has misinterpreted the new statute and the Justice Department is trying to insulate the law."

Guttentag said that 1st U.S. Circuit Court of Appeals in Boston is the first so far to rule that the attorney general has misinterpreted the 1996 law and that courts are entitled to review it.

"We are litigating this in courts throughout the country," Guttentag said.

Thankfully, said Osahon Ukponmwan, Everton Henry's physician, his patient is able to buy some time with dialysis while the litigation proceeds.

"He's a young man, and he's active," said Ukponmwan. "But the sooner he gets a transplant the better."

Pub Date: 8/13/98

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