President Obama’s uncle has won a new deportation hearing in Boston immigration court, more than a year after a drunken-driving arrest in Framingham revealed that he had violated a longstanding order to return to Kenya.
Last week, the Board of Immigration Appeals granted Onyango Obama’s request to reopen his immigration case based in part on his contention that his prior lawyer was ineffective, according to a government official with direct knowledge of the case. Obama’s new lawyers have also argued that the 68-year-old Obama has lived in the United States for nearly half a century and deserves a chance to make his case.
Brian P. Hale — spokesman for U.S. Immigration and Customs Enforcement, which is prosecuting the deportation — confirmed that the board has reopened the case but declined to elaborate.
The board’s decision raised eyebrows among immigration lawyers who say it is difficult to persuade the immigration courts to reconsider a case that involves an arrest and a flagrant violation of a deportation order, last issued in 1992.
Framingham police arrested Obama for drunken driving in August 2011, and he later admitted in court that prosecutors had sufficient facts to bring the charge against him. But the drunken driving charge will be dismissed as long as he complies with terms of his sentence, including a year of probation that ends in March.
“With an outstanding order and a legally fuzzy plea, it’s pretty unusual for the board to reopen” an immigration case, said Crystal Williams, executive director of the Washington-based American Immigration Lawyers Association. “It’s not unheard of, but it’s pretty unusual.”
Scott Bratton, one of Obama’s lawyers at the Margaret Wong law firm in Cleveland, said Monday night: “We are obviously extremely pleased with the board’s decision. This will allow him to pursue his application for permanent resident status.”
Lauren Alder Reid, the courts’ chief counsel for legislative and public affairs, said she could not comment on the immigration case or say when a hearing would be scheduled because case information is generally protected by federal privacy provisions, unless the immigrant or his representative authorizes its release.
Because immigration court records are generally closed to the public, it is unclear what evidence the board reviewed to support Obama’s claim that his lawyer was ineffective. The government official who provided the reasons behind the board’s decision spoke on condition of anonymity because that person was not authorized to speak to reporters.
However, prior immigration judges’ rulings in Obama’s case obtained by the Globe under the Freedom of Information Act show that the Board of Immigration Appeals criticized his lawyer, Joseph F. O’Neil, in 1992 for failing to file a legal brief to support Obama’s appeal.
“Counsel for the respondent has in no meaningful way identified the basis of the appeal from the decision of the immigration judge,” the board said.
O’Neil, a veteran immigration lawyer and an adjunct law professor, died in 2008. Ralph J. Smith, a former associate of O’Neil’s who handled Obama’s deportation proceedings before the appeal, said in a phone interview Monday that he did not remember Obama’s case. But he described O’Neil as a strong immigration lawyer with decades of experience.
“When they say ineffective counsel, that’s something that’s being used just to make an appeal going,” said Smith, now 90 and retired. “It throws the ball over to the other side.”
Obama is the second relative of President Obama to face deportation in the Boston immigration court. The president’s aunt Zeituni Onyango was discovered in Boston’s public housing in violation of a deportation order just before the president won election in 2008. She won asylum in 2010 based in part on the exposure of her case to the public.
On Monday, critics said Onyango Obama appeared to be getting a special deal. Instead of deporting him, which happens frequently to other immigrants with deportation orders, Immigration and Customs released him from immigration detention. He obtained a federal work permit and a state hardship driver’s license, since his own was temporarily revoked, so that he could return to work at a liquor store.
After his arrest, Framingham police said Obama told them: “I think I will call the White House.”
“He would seem to fit the criteria of someone we would want to remove,” said Ira Mehlman, spokesman for the Federation for American Immigration Reform, which favors stricter limits on immigration. “And yet even in this case the system bends to his will and he gets another hearing.”
The president was not close to his late father’s side of the family, but he wrote about them in his 1995 memoir, “Dreams from My Father.”
But immigration lawyers said the fact that Obama is related to the president could bolster a potential argument that it would be unsafe for him to return to Kenya.
“Anyone who’s related to the president of the United States technically is at risk,” said Matthew Maiona, a Boston immigration lawyer.
Obama’s immigration history is a bit of mystery because immigration court files are closed to the public. According to the earlier judges’ decisions obtained by the Globe, an immigration judge first ordered him deported in October 1986 because he had no legal basis to stay and no special factors, such as American-born children, that would allow the judge to let him stay.
Onyango Obama came to America at age 17, in October 1963, to study at an elite boys’ school in Cambridge. According to the judge’s decision, he was supposed to have left the United States by Dec. 24, 1970.
Instead, Obama worked from 1973 to September 1984, when immigration officials found him, according to the court’s decision. In 1989, the judge again ordered him deported, and three years later the Board of Immigration appeals dismissed his appeal.
Read more about Obama’s uncle gets expulsion rehearing