The bride wore white. The groom wore prison garb. Two days later, the immigration judge wore a put-upon expression.
The deportation hearing of Eddy Zheng had just taken a very weird turn.
Not that any part of his journey through the American legal system has been ordinary. After nearly twenty years, Zheng is approaching the endgame of an odyssey that began when he was a sixteen-year-old recent immigrant who barely spoke English and ran with the wrong crew in Oakland’s Chinatown.
The skinny, money-obsessed kid was one of three teenagers who committed an intensely frightening robbery-kidnap as clumsy as it was horrific. All three young men were caught immediately. Zheng received the maximum sentence — seven years to life — and his attorneys expected him to serve eight or nine years.
By the late ’90s, Zheng already had served twice that. He’d also made a stunning transformation from junior hoodlum to star pupil at San Quentin. He taught himself English, and earned a GED and an associate of arts degree. He developed a deep love of poetry, self-publishing his own zines and organizing the prison’s first poetry slam. He worked with “scared straight” programs, urging teenagers to avoid his fate. He carried on a torrential correspondence with civic leaders and literary luminaries in the outside world, who were attracted by his intellectual voracity and his evident desire to atone for the past. He avoided drugs and eschewed gangs. He didn’t just do time; he did it well.
At first, Zheng’s good behavior was noticed, and in 1998, the parole board recommended his release. But Governor Gray Davis had the ultimate vote and he promptly returned Zheng’s case to the board for reconsideration. That time, parole was denied, and for the next five years, the board continually turned Zheng down. Davis wasn’t paroling anyone anyway: Of the 340 parole recommendations during his tenure, he overturned 332.
The harder Zheng worked to reinvent himself, the more outsiders sympathized with his plight. Here was a felon who actually had changed for the better inside the notoriously corruptive California penal system, yet it looked like he might never get out. “If they really are rehabilitated, you should give them a chance,” says Victor Hwang, president of the Asian American Bar Association, who rallied legal support for Zheng. “He’s developed into a community leader. He’s been really able to outgrow the prison boundaries and make connections with the larger progressive and Asian-American communities.”
Zheng’s supporters are indeed a who’s who of high-profile Bay Area lawyers, politicians, professors, and clergy who believe he is ready to contribute to society. Even the district attorney and judge who sent him away say he has been punished enough. Student activists took up his cause — among the most dedicated was UC Berkeley student Anmol Chaddha, who met Zheng through an inmate tutoring program. He launched a Web site devoted to the case, as well as a blog into which another of Zheng’s friends types his semiweekly dispatches from prison. “He’s not just a nameless inmate who is doing time sitting on a bench in prison,” Chaddha says. “He’s actively engaging with his world. He has something to say and people want to hear it.”
Finally, last November, the board again recommended Zheng for parole. If Governor Arnold Schwarzenegger didn’t object, Zheng would finally be free, after nineteen years in prison. The March 10 deadline arrived with no word from the governor. But that’s where Zheng’s story took another twist.
Instead of seeing daylight, he now faced deportation. He’d have to wait in federal custody while the Department of Homeland Security decided whether he should be sent back to China. Federal agents picked him up from one jail cell and drove him to another.
Zheng had immigrated legally, but imprisonment prevented him from becoming a naturalized US citizen. He had always faced the possibility of deportation at the end of his sentence, but a federal rules change ten years into his prison term made deportation mandatory for noncitizens who have committed aggravated felonies. Until a few months ago, he could have applied for a waiver often given to inmates jailed before the 1996 rules change, but a recent government ruling removed that option.
His supporters are shocked that Zheng spent nearly two decades repaying his debt to American society and yet may be exiled to a country he hasn’t seen since childhood. “The state and taxpayers of California have spent probably close to $1 million on incarcerating and encouraging his rehabilitation, and we finally have produced someone who actually is rehabilitated,” Chaddha says. “Then you export him, and you’ve wasted him.” Zheng has escaped the frying pan, only to be fed to the fire.
But there is still one way for an inmate to secure a deportation waiver: by marrying a US citizen. So, two days before his hearing, Zheng exchanged vows with massage therapist Shelly Smith, who began a romance with him six years earlier. The ceremony was short, sweet, and not a moment too soon. The next morning, Smith filed a spousal petition for Zheng’s residency. It was a last-minute change in a legal battle already full of last-minute changes.
Love might literally set Eddy Zheng free.
Zheng has had a lot of time to think about the circumstances that drew him to crime. Before the Zhengs immigrated to Oakland from China when he was twelve, the family had been relatively well-off. His mother had been a government accountant; his father had been in the military, then managed a basketball team. Eddy, their youngest child, was a spoiled kid who didn’t have to do chores and didn’t go to kindergarten until he was seven because the aunt who babysat him couldn’t bear to part with him. Zheng was miserable about moving to America.
Circumstances were bleak in the family’s new home — seven people shared a two-bedroom apartment over a sewing shop on Telegraph Avenue. Because of American sci-fi movies, Zheng’s sister Lili recalls, the kids expected to find a land of ease where robots did your chores. Instead, all the family did was work. Zheng’s father and older brother took long shifts at Burger King, Lili worked three part-time jobs and eventually put herself through UC Berkeley, and his mom became a live-in babysitter who came home only one day a week. For most meals, the family ate peanut butter and jelly sandwiches or Burger King hamburgers that had been tossed after they sat on the grill too long.
Because everyone was trying to get ahead, nobody was watching Eddy. He hardly spoke English, and was one of the few Chinese kids in a mostly African-American junior high. He felt isolated and bullied, taunted about not having lunch money and for wearing clothes from Goodwill. He would escape by taking the bus to Chinatown’s Lincoln Park to hang with kids who spoke his language.
He befriended two a couple of years his senior, Dennis Chan and David Weng. Together, the three were trouble. Zheng’s grades fell and he skipped school regularly. During their high school years, the three young men were busted for petty theft in Daly City and car theft in Concord; Zheng served probation and was ordered to provide restitution. It wasn’t much of a deterrent. When Zheng was sixteen, the two older boys came up with their biggest scheme yet — an armed home invasion. He agreed to it. Their target was another immigrant Chinese family that owned gift and herbal medicine shops in San Francisco’s Chinatown. The teens were convinced the family owned a safe that surely would yield instant wealth.
At Zheng’s sentencing, the prosecutor explained how carefully the teens planned the crime. Chan saved his allowance money to buy a gun, they borrowed a getaway car, and they tailed the father, Kwong Sang Tam, home from work to learn his address. On January 6, 1986, the teens followed the family upstairs to their apartment and forced themselves inside at gunpoint. What they’d envisioned as a quick holdup then devolved into a six-hour Tarantino-esque debacle that only got grislier and more complicated as it went on.
They began by dividing the Tam family, hoping to scare one of them into revealing where the safe was. They bound the father’s hands with wire. They made the six- and nine-year-old children, Jenny and David, get into the bathtub so they wouldn’t see what was going on, but the kids escaped and tried to untie their dad. Jenny recalls the teens returning her and her brother to the bathroom, this time duct-taping their mouths and tying their legs and hands together. David remembers one of the teens pointing a gun at him and warning, “I could shoot you and there could be a lot of blood, so you should be quiet.” Jenny says one robber pointed his fingers like a gun at her head and made a shooting noise, then demanded where the money was. She told him to look in her mom’s purse.
But of course, the three young men were after much more than a purse. They spent hours ransacking the house in frustration. To intimidate the mother, Mary, Zheng ripped her shirt and one of the boys grabbed an empty camera and pretended to take pictures with it.
And yet Zheng was also still so young that he remembers stopping to play with his victims’ remote-controlled robot. “I knew I was committing a crime, but I didn’t know what the consequences of the crime were,” he says. “I was feeling this adrenaline; I wasn’t feeling fear or anything like that.”
By 11 p.m., the teens gave up on finding a safe. They hatched a new plan when they spotted a shop key lying around. While Weng kept watch on the house, Zheng and Chan drove Mary to the family’s stores, where they helped themselves to $34,000 worth of cash and merchandise. While they were gone, the others untied themselves and threw books out the window until they finally got a neighbor to call the cops.
The teens’ ineptitude proved to be their undoing. When a police officer pulled over Zheng and Chan for driving without headlights, one glance at the shaken woman in the backseat told him something was wrong. Zheng confessed immediately upon his arrest.
After the break-in, David recalls, “life changed pretty much forever.” His parents installed an alarm system, window bars, a cage around the balcony, and a bar across the back door that Jenny says looks like it was designed to withstand a battering ram. Although the family didn’t talk much about the crime, it clearly took a toll on them. “From that point on, I was very, very paranoid,” David recalls. “It’s hard to regain that innocence that was lost. You normally don’t lose that until later in life, but I lost it at nine.” Jenny remembers that her brother was afraid to sleep or be left alone in a room; his mom made him take self-defense lessons, but that didn’t make him feel more protected. “I was ten,” he recalls. “What good is it going to do?”
The siblings say their mom never spoke about what exactly happened to her, but it left her deeply shaken, and at one point she considered buying a gun. Jenny says her mother would call the cops when she heard noises upstairs, and once hired a private detective to follow her daughter around. “She always saw me as being on the edge of something horrible and terrible about to happen, like I’m about to be the victim of some crime,” she recalls. “To be an immigrant I think it’s really difficult to find security, but if that crime hadn’t happened I think there would be more peace of mind with her.”
Life also had changed for Eddy Zheng. If Oakland high schools had been confusing, the American legal system was much worse. His family couldn’t afford a lawyer, so he was appointed a public defender. She didn’t have much to work with; after all, her client was caught red-handed and had admitted everything.
But there was one thing Zheng’s defense could do: Ask the judge to issue a judicial recommendation against deportation. Such orders protect defendants from deportation once they’ve served their sentences. In court, the lawyer promised to ask for one.
Zheng’s family thought he’d be more likely to get it if he pleaded guilty and accepted the maximum punishment. Plus, Lili says, her family was very ashamed. “Chinese culture is very interesting,” she says. “Rather than going to fight for him, the family generally just basically tells him, like we did, how bad he was and how he deserves his punishment. We told him he should admit all the wrongdoings, all the crimes he had committed. But of course we didn’t know what the legal ramifications were.”
Neither did Eddy. Although he had an interpreter, most of the legalese used in court was beyond him. Ultimately, he was tried as an adult and pleaded guilty to eighteen counts of robbery, kidnapping, and assault with a firearm. “I didn’t understand what I was pleading guilty to,” he says. He expected to do somewhere between six and nine years, and didn’t realize he had a life sentence until he was booked into the California Youth Authority and someone checked his paperwork.
In the confusion, a crucial omission was made. Zheng’s lawyer never asked for a judicial recommendation against deportation. In 1990, such recommendations were outlawed and Zheng cannot get one retroactively. This upsets his family deeply. “If the plea bargain was to get the maximum penalty and no possibility of parole and to be tried as an adult, what did he bargain for?” his sister asks. “At that time, the only reason for a plea bargain was that he would not be kicked out of the United States.”
After all, Zheng’s court-ordered psychiatric evaluations concluded that he could be rehabilitated. They described him as naive and immature but genuinely remorseful, someone who could be persuaded to do wrong but did not have hardened antisocial tendencies. “Eddy is feeling confused and lost,” one such evaluation concluded. “He expresses a strong desire to change, but he needs a firm and understanding guiding hand to set his course straight for him.”
He was unlikely to get it in the California penal system, which is notorious for taking in petty punks and turning out dedicated thugs. Plus, Zheng was serving adult time — he spent only a few months in the California Youth Authority before being transferred to San Quentin.
In prison, he discovered how much he enjoyed learning. He started by teaching himself to read English, largely with the help of romance novels. He moved on to more difficult material, took prep courses, and passed the GED on his first try. He took Spanish lessons, taught himself yoga, and learned how to play guitar. He loved to sit in on all types of religious services and study all areas of history — United States, African-American, Latin-American, you name it. “Education has saved my life,” he says with great feeling.
Unlike most California prisons, San Quentin has a college program through which inmates can earn an associate of arts degree. Oakland-based Patton University organizes students from Bay Area colleges to tutor inmates during study hall. During the late ’90s, it was through this program that Zheng forged some of his strongest ties to the outside world, many through fellow twentysomethings who shared his love of literature and introduced him to the campus issues of the day. Even if the students volunteered for only a semester, Zheng avidly corresponded with them.
Nearly everyone who met him though the program recalls being impressed by his charisma and thirst for knowledge. “He really sees things as limitless, which is amazing considering his physical situation,” muses Jeanne Loh, a former tutor who now posts Zheng’s blog entries for him. “He has a sort of sincerity and eagerness about learning and developing and being a better person. He inspires people.”
When the poet known as D-Knowledge came by to read his work, Zheng became hooked on poetry. He liked that it is confined; that poets have to carefully select the right words. “I was just captured by his poetry, that he was able to capture feelings through his spoken word,” he says. “My first poem wasn’t that good. I wrote it out of adrenaline because I was experiencing something and feeling the injustice of it.” But he kept trying; after study hall he and his friends would share new poems and challenge each other to complete more. After a friend turned him on to the work of Saul Williams, Zheng organized San Quentin’s first poetry slam — it was standing room only.
Zheng began figuring out ways to connect with the world outside. He self-published a zine that included essays about love, shame, prison life, and historical figures like Frederick Douglass and Abraham Lincoln. He took public speaking lessons so he could participate in crime-prevention workshops for teens who visited the prison. He developed a curriculum aimed at at-risk immigrant teens that is used today by San Francisco’s Chinatown Community Development Center and the Oakland-based Asian/Pacific Islander Youth Promoting Advocacy and Leadership.
He says he was motivated by a deepening understanding of the hurt he had caused his victims and his own family. “Not only did I rob them of their material possessions, but I robbed their security,” he says of the Tams. “I caused them mental anguish, probably for their lives.” His own family suffered deep shame, he says, and his grandparents passed away without ever knowing what had become of him. He began using poetry to wrestle with his guilt. In a poem titled “Ghost,” he wrote:
If you go out at night
you will see a ghost one day
The warning and wisdom of a mother
a prophecy unheeded
I lay under the [covers] of a fluffy bed
fully dressed awaiting for the sleepy bugs
to close my parents’ tiring eyes
It’s almost midnight
I tiptoe to the rhythm
of my parents’ breathing like a burglar
and enter the bathroom
As I open the window
I flush the toilet to disguise the sound and crawl out
standing on the ledge of the second floor apartment building
I wonder how I will get down to the ground
Fear is not in the vocabulary
of an invincible 15-year-old
I slide down the black drainage pipe
only to face a ten-foot fence blocking my way
The alluring darkness hypnotizes me
turning back is not an option
I climb over the fence and disappear
As I lay under the covers of a stiff double bunk bed
on this modern-day slave plantation called the Prison Industrial Complex
the ghost sleeps with me
Zheng says he wanted to apologize to the Tams and even asked a priest to serve as his go-between, but that his friends advised him not to. They worried it might reopen old wounds for the family, whom they supposed wanted to forget the past. After all, even though the Tams were notified of Zheng’s parole hearings every year, they had never voiced their opinion publicly. So he relented. “What I am doing to repay them and show my remorse is to continue to improve myself and learn and help other people,” he says, “because when I help other people I am paying for the crime I committed.”
The more Zheng reached out, the more the community reached back. Publications accepted his essays and poems. Chaddha and others organized fund-raisers on his behalf and helped him sell his zine. And Zheng found a lifeline exchanging books and letters with friends and admirers on the outside — particularly women, who found him to be a chatty, expressive guy with a willing ear. “I wanted to have a girlfriend, somebody who loves me and who I love,” he says. “Every time I see a woman, it was like, ‘Man, she’s so intelligent and beautiful and she’s my type.’ Everybody was my type.”
Zheng turned out to be Shelly Smith’s type. She was a volunteer English tutor, a soft-spoken woman with an intricate tattoo at the base of her throat. When they met in 1999, she was drawn to him right away. “In that environment of prison, where people can feel very beaten down, it kind of seemed like he was in charge, almost,” she recalls. “I immediately noticed him for just being secure in himself. And his writing is beautiful — his heart and the sentiments he expresses are beautiful.”
They exchanged writing samples and compared philosophies; she visited him often. But it’s hard to conduct a romance in prison, even harder when you have no hope of getting out anytime soon. Zheng knew he deserved punishment, but felt he’d done all he could to earn forgiveness. “I thought, ‘I’m wasting time. I’m rehabilitated, I want to go out to the community and start working and helping people and set up a new life,'” he recalls. “When I get denied for no reason except for the crime — which will never change in a million years — I started questioning the system and how the system plays with our lives.”
And so, even years after Zheng and Smith’s relationship had moved beyond friendship, they didn’t talk too much about the future. “We have this feeling for each other but are always afraid to pursue it,” Zheng recalls. “You put your hopes too high and you know you’re going to suffer.”
Right around the time he met Smith, in the fourteenth year of his incarceration, Zheng bumped into someone else who gave him hope. Keith Wattley, a lawyer with the California Prison Law Office, was visiting another inmate when he and Zheng struck up a conversation. Wattley remembers being impressed by Zheng and appalled by his story: “It was clear he’d done everything anybody had ever asked him to do and then some, but he was still being denied the opportunity to live as a free person.”
Wattley filed an appeal claiming that Zheng was wrongly denied a rehearing when the board rescinded his parole offer in 1999. It took two years, and the board ultimately upheld its decision. Zheng appealed their decision in 2001, and that took another year to consider. In the meantime, he went to parole hearings every year, hoping to convince the board that he had truly changed. But the answer was always no — his crime had been too serious.
In prison, though, his behavioral record had been spotless. But as he observed the increasing number of Asian inmates flowing into the prison system, Zheng began doing things that made correctional officials view him as a troublemaker. He pushed for the college program to teach Asian history and other cultural studies classes, concerned that Asian inmates of different nationalities had little common cause. When nothing materialized, he and two friends circulated a proposal and asked other inmates to sign it. That went over badly. His cell was searched, and he was written up for violating prison rules by passing his essays and poems through a tutor to publications outside the prison, among them the SF Weekly, which ran a 2002 story about his seemingly futile parole bid. Inmates are supposed to send written material through the mail so that it can be screened.
Zheng then spent more than nine months in administrative segregation: 23 hours a day alone in a tiny cell, with a chance to shower or go outside only three times a week. Inmates in “The Hole,” as it was known, wore handcuffs every time they were out of the cell and couldn’t use the phone. Zheng remembers solitary as a creepy, rat-infested place that rang with the shrieks of mentally ill inmates.
It was in the Hole that Zheng experienced his lowest point. He’d been getting letters from his mother that her health was faltering and that he should stop sticking his neck out and just come home. Zheng despaired, knowing that at his next parole hearing he’d have an administrative violation to explain. If he’d been denied with a clean record, what chance did he have this time?
Strangely, it was also in the Hole that Zheng felt most alive. The Asian studies petition had turned him into a cause célèbre. Victor Hwang of the Asian American Bar Association had rallied other lawyers to his defense, and his legislative supporters by that point included Senate President John Burton, Assembly Majority Leader Wilma Chan, Congressman Mike Honda, and Assemblymembers Leland Yee, Loni Hancock, and Judy Chu, among others. Zheng became what one observer dubbed “the Asian Mumia,” a model prisoner of reform whom even an Asian community reluctant to talk about youth incarceration could embrace. And of course, he was no longer young — he was a bespectacled man, beginning to gray above the ears, finally coming to terms with himself. As he wrote in one part of a poem that he titled “Autobiography @ 33”:
I never felt such extreme peace
despite being mired in constant ear-deafening screams
from the caged occupants …
drop-outs, parole violators, lifers
drug casualties, three strikers,
in San Quentin’s 150 year old solitary confinement
I don’t want to start things over
I am very proud of being who I am
Enter Peter Kang, a San Francisco patent attorney. Despite having no civil rights experience, Kang was so outraged by Zheng’s punishment that he filed an appeal designed to expunge his record before his next parole hearing. The charges against Zheng had nothing to do with Asian studies, or even passing papers to outsiders, Kang says: “They basically didn’t like the fact that a bunch of prisoners were getting educated and uppity and trumped him up on these bogus charges.” Kang argued that Zheng’s free-speech rights were being abridged and that his punishment was too severe. It took a year, but he won the appeal. Zheng even was awarded a small monetary settlement.
Things began happening quickly. With Zheng’s record expunged, in November, 2004, the board approved his parole. What changed its ruling? Wattley says we’ll probably never know — the board doesn’t have to give reasons.
Not that anyone on Zheng’s legal team was going to question the good news — or had much time to. Suddenly Zheng faced deportation. His army of lawyers took on two more recruits, each pursuing different lines of defense: immigration attorney Zachary Nightingale and criminal attorney Alex Reisman, who pored over Zheng’s old court transcripts and discovered the mistake regarding the judicial recommendation against deportation. Reisman believes it’s a big enough error to argue that Zheng had insufficient counsel as a teenager, and that his convictions were obtained in violation of his right to due process of law and effective assistance of counsel. He has filed a motion that could vacate Zheng’s convictions and at least temporarily halt deportation proceedings. At that point, the San Francisco District Attorney’s office, which originally prosecuted Zheng, would have the choice of either dropping the case or refiling the charges. Rather than retry a twenty-year-old case, Reisman hopes the DA might be willing to cut a deal and thereby lessen the argument for Zheng’s deportation.
But Zheng’s sudden fame also has had another side effect: It has brought him back into the Tam family’s life. Although they were notified of Zheng’s parole hearings every year, family members never voiced an objection. However, after being contacted about the deportation case by the Department of Homeland Security, the Tam siblings Googled Zheng’s name, discovered his Web site and blog, and were shocked to see him glowingly described as though he were a prisoner of conscience and not a convicted felon. Jenny Tam, now a sociology student, and David Tam, now a financial consultant, felt that Zheng was being lionized without anyone hearing their side of the story. “It’s an insult to be referred to as his little mistake,” Jenny says. “They don’t realize how hurt we were.” Adds her brother, “He was Asian, but he robbed an Asian family. So the Asian community that is standing up for him should realize there is an Asian family that is a victim at the same time.”
Although they concede that Zheng’s sentence has been long enough, both support his deportation. “If you break the rules of the society you live in, guess what, pal?” David asks. “You get sent back to the society you came from. It’s like driving — that’s a privilege. You drive drunk, you break the law, and you lose that privilege.” And while he respects Zheng’s efforts in jail, he says, “I honestly don’t believe anyone can make a true change deep down inside.”
His sister is more willing to believe that Zheng could have transformed himself. “They’re trying to make Eddy out to actually be one of the guiding forces in the community, and if that’s the case, that would be so wonderful to have somebody like that,” she says. “I’m skeptical and need more proof. I don’t think it’s acceptable proof to see what he does in jail.” After all, she says, it’s easy to be good in prison. You’re under surveillance, you’re trying to impress the parole board, you have time on your hands, so you might as well volunteer. “I’d like to see what he does when he has a choice,” Jenny says. “I wish the best for him, but far away from my family.”
Zheng would tell you it’s actually very hard to be good in prison. Even under lockdown you can score drugs, join gangs, or get into fights. “In prison, it takes a solid individual, a mature adult who has respect for himself to have willpower not to do bad,” he says. “People can go into prison and come out worse, so that all they want to do when they come out is victimize people and continue the cycle of violence. But I sought out alternatives to transform my life. … The person that I was is someone that I’ve left behind for nineteen years. I feel very remorseful for the crime I committed and to the victims; I always hold them in my heart. They have a life sentence like I do.”
In a life driven largely by imprudent youthful impulses and forces outside of his control, Zheng tries to employ the Buddhist philosophy of letting go, of being open to whatever comes next. With so many separate legal battles being waged on his behalf, what that might be is anyone’s guess.
If Reisman’s bid to vacate Zheng’s convictions fails, Nightingale is ready to use every possible defense to keep his client on US soil, starting by arguing that Zheng’s involvement in Catholic services and his blog’s criticisms of the Chinese government could put him in danger in China. “A lot of times when people have criminal records here, the Chinese government feels that they are criminals who have not been sufficiently punished because their justice system is much harsher than ours, so they will sometimes reincarcerate,” Nightingale says. Or at least, he says, the government will be on the lookout for a reason to lock him up again: “If they arrest him, I think it’s very likely he’ll be tortured.” Zheng’s sister, who frequently travels to China for business, says she cannot access his Web site from there, indicating that it has already been discovered and blocked.
It’s just as hard for Zheng to envision what his life might be like in China. After nineteen years in custody, he has been shaped more by California correctional institutions than by his native Canton. His sister says his Chinese isn’t as good as it used to be, and she doubts he could get a decent job. The family’s only remaining relative in China is the aunt who once babysat him, but she is now eighty years old.
If Zheng were ever to get out and remain in the United States, he already has a handful of job offers, mostly to counsel at-risk youth. “He’s already touched more lives here in the Bay Area than most of us ever will in a lifetime,” Wattley says. Zheng says his dream is to take a nonprofit job and learn how such agencies work so that he could launch his own a few years down the road. He’d also like to go on a speaking tour warning immigrant teenagers about the double price they’ll have to pay if they go astray — first incarceration, then deportation. Zheng and Smith are reluctant to dwell too much on their future plans since so much is uncertain, but they still dream a little. Zheng longs to get to know his parents as adults, and Smith would love to take her husband to the beach for an unbarred glimpse of the sea.
Of course, they also were once reluctant to broach the subject of marriage, but everything changed after Zheng was taken into immigration custody. Even people who have committed a crime of violence can apply for US residency based on an American spouse.
So, two days before Zheng’s most recent hearing this July, the bride and groom said their vows through a Plexiglas wall and a set of prison phones. With the help of a guard, Zheng presented Smith with a box a fellow inmate had made from a potato chip bag; it contained a ring Zheng had folded from green and white origami paper. She carried yellow roses, he recited haiku. The musical part of the program was nixed after a friend who brought bagpipes was made to check them at the door.
Two days later, the immigration judge slumped over his desk and surveyed his packed courtroom: a drawn-looking Smith, Zheng’s parents and sister Lili, Catholic priests in collars and robes, and a motley assortment of students, peace activists, and friends. Zheng, who had entered the room smiling broadly and flashing the peace symbol despite the hampering effects of his handcuffs, now sat as if frozen.
The nervous crowd was prepared for nearly anything: the judge could order Zheng’s immediate removal, or he could throw out the deportation case entirely. Nightingale thought it was possible the judge would go through with a rigorous merit hearing, in which Zheng’s supporters would attest to his radical personal transformation. Nightingale was ready to invoke the Geneva Convention Against Torture, and he and Smith were prepared to testify that Zheng’s marriage, although conveniently timed, was the result of a long and earnest courtship, and not a legal fabrication. Nightingale carried with him an inch-thick stack of the couple’s photocopied love letters. Cautiously, he suggested that Zheng’s hearing be pushed back to allow Smith to petition for his residency.
The federal prosecutors were having none of it. They wanted a decision that day. After all, they argued, spousal petitions are notoriously lengthy processes, taking on average eighteen months for approval. American taxpayers will shell out $100 for every day that Zheng remains in custody, they said — why keep him in jail for another year or two when he could be released to China right now?
The judge looked pained and thoughtfully shuffled some papers. Then he did something no one in the legal system had done in a long time: He gave Eddy Zheng a break. Instead of questioning the hasty marriage, he agreed to postpone Zheng’s hearing for a few months so that the couple could pursue Zheng’s residency. It was a temporary reprieve — after all, there’s no telling what immigration officials will make of Zheng’s nuptials, or how far along the residency process will be before his next hearing in October. But for the first time in years, it looked to Zheng’s supporters like he might find a way out.
Back in his jail cell, Zheng savored his small victory. “Before it was like, no, no, no,” he says. “I couldn’t help but wonder why are they so determined to stop me from staying in this country when all I want to do is go out there and help people.” But nearly twenty years in custody will teach you patience, and Zheng knows not to take anything for granted. While he waits for October to roll around, he has some books to read and some poems to write: “I embrace whatever is going to happen.”
For Blake’s Sake
If marriage does not save him from deportation, Zheng will challenge a crucial court ruling.
Five months ago, Eddy Zheng would not have been in this mess. Although deportation became mandatory after 1996 for noncitizen parolees who committed aggravated felonies, a waiver was available until April for people sent to prison long before that. When the state parole board voted for Zheng’s release, he would have been expected to seek such a waiver.
But this spring, the federal Board of Immigration Appeals considered the case of Leroy Nelson Blake, a New York man who had sexually abused a minor. The resulting decision, dubbed “Matter of Blake,” barred future waivers for noncitizens convicted of aggravated felonies — no matter when they pleaded. Zheng became one of the first people to be affected by the new and somewhat obscure ruling. His marriage may save him from it, but if not, he could be the test case to challenge it. His immigration attorney, Zachary Nightingale, expects the Blake decision to be appealed, whether or not by his client.
Nightingale says the Blake decision is a nightmare for hundreds if not thousands of inmates who were convicted long before 1996 and are just being paroled now. Even worse, he notes that thousands of already freed ex-convicts would be eligible for deportation should they have another brush with the law — or if they simply apply for citizenship, or come back from a foreign vacation. Immigration crackdowns like this summer’s Operation Community Shield, which targeted nearly six hundred foreign-born gang members on immigration violations, means this will probably happen sooner rather than later.
Immigration courts are civil courts, which unlike criminal courts do not have laws that prevent people from being punished by rules that did not exist when they committed their crime. “All the due process protections that we know and love about the Constitution go out the window — they do not exist in civil law,” Nightingale says. “That’s why immigration can try to deport somebody for something that occurred twenty years ago.”
Both the Executive Office for Immigration Review and the Department of Homeland Security’s Immigration and Customs Enforcement branch refused to comment on the Blake decision. The former doesn’t comment on appeals board rulings, and employees of the latter decided the topic is just too complicated to explain. The only comment DHS spokeswoman Lori Haley was able to offer regarding Zheng’s case was, “Everybody has due process, and if they feel that they have evidence to support why they should be here, they have an opportunity to go before an immigration judge.”