The lawyer acting for Everlee Wihongi says she is disappointed and sad after a hearing to allow her to argue for her release from immigration detention in the US has been postponed to next week.
By Bill Hackman of RNZ
Wihongi was detained by ICE while attempting to return to the US on a Green Card – or Permanent Resident Card – after a three-week holiday in New Zealand in early April.
She is a New Zealand citizen, but has lived in the US for decades.
Wihongi's lawyer, Marc Christopher said problems connecting a Zoom call to the court prevented her from testifying and she will remain in custody for at least another week until a rescheduled hearing.
"Five minutes before the hearing we were informed by the detention facility that their internet had gone out and they had no phone communication whatsoever.
"This was after we were assured that they were going to be able to provide Zoom capabilities to the court. The judge was very accommodating. [Wihongi] could have called just a basic number. The facility was unable to do that," Christopher said.
He had been able to speak with Wihongi by Zoom on Thursday and she had also been able to call out to her mother's phone during today's hearing – on an inmate line that the court was unable to use.
"A simple telephone call. You're telling me that she could not make a telephone call out of a major detention centre? It almost defies what is believable," Christopher said.
At a press event in Auckland on Friday Minister for Foreign Affairs, Winston Peters pushed back at suggestions that not enough was being done in support of Wihongi's situation.
He said the country could not afford to provide Wihongi with more than the efforts of consular services.
"This is somebody that chose the United States 25 years ago. We've given enormous consular support to the max but we can't go any further than that. We've never ever – in cases like that – provided legal advice because we can't afford it. She's got a lawyer anyway," Peters said.
He said the consulate had been in contact with Wihongi, her whānau and lawyer on multiple occasions.
"We've done everything we possibly can. New Zealand is not being irresponsible here and it's not our obligation – I'd say – to think we can help out everyone around the world who's made a choice to make their life in another country. When you make that choice you decide to sign up for the social criteria of their country and not ours. That's the truth of the matter.
"Unless this person was facing death we can't go any further than this. That's our difficulty, we've got limited resources," Peters said.
A Ministry of Foreign Affairs and Trade spokesperson said the type of support available in similar situations included ensuring that New Zealanders had access to legal representation, advising family, and engaging with detention facilities where needed.
Christopher said the current detention facility where Wihongi was being held was better than her previous locations but conditions inside were still challenging.
"She's in a very large dorm room with 30-40 people in the dorm. The food is very substandard - it's normally a piece of bread and two pieces of lunch meat with milk or a coffee. There's very little opportunity for her to be outside or to have any type of recreation so it's a very, very difficult existence while you're in there."
Wihongi's emotional state in detention went "back and forth".
"There are moments when she's guardedly optimistic but after speaking to her today - after the hearing - you can't help but feel the disappointment and sadness in her voice knowing that she's going to be in there for at least a couple more weeks," Christopher said.
Earlier this month, he told RNZ Wihongi had been charged in relation to her conduct concerning a decade-old conviction for a felony offence of marijuana possession.
Christopher said he was arguing that Wihongi originally pleaded guilty to that charge on the basis of incorrect legal advice that her conviction would not affect her immigration status.
"Under our constitution, if that happens, a person is able to then vacate their conviction.
"If that conviction was vacated, the US would no longer have any legal basis to detain her, and she would be released "relatively soon after," Christopher said.
He said that following Wihongi's conviction the attorney behind the advice was "disbarred for a number of reasons, foremost for lying to his clients, for forging documents and forging court orders."
Christopher said he'd been in discussion with District Attorney Eric Toney and he was working to provide Toney with further details and documents in support of Wihongi's case ahead of next week's hearing.
"We are going to look into some things to see if there is some common ground to reach some type of resolution. So all is not lost,"
He said the problems in putting Wihongi before the court was indicative of the country's rush to imprison large numbers of people without forethought and appropriate infrastructure.
"When you rush to put a massive amount of people into detention centres but you do not think things through logistically.
"They're unable to adequately feed them, they're inadequately able to provide them medical care, to have them access to an attorney and – in this case – a simple telephone call.
"This is a good indication of what is happening to hundreds of thousands of people who are in the United States being put into these massive facilities – into a system that is very slow – in where the ability to communicate, to have access to an attorney, to have a fair hearing in front of a judge are all very difficult to get and compromised.
"What we're seeing is a massive warehousing of people and it's the American taxpayers that are paying for this massive and inhumane containment of people," Christopher said.
He said he was hoping the New Zealand government would appeal to ICE authorities to allow "a little discretion" to arrange visitation for Wihongi's family and legal counsel to see her.
Family deflated by delay
Wihongi's sister in law Courtney Wihongi said Everlee's mother and whanau who attended today's hearing were "deflated" by the postponement.
"This is something we've been working on for the past two weeks - to be able to get her to appear via Zoom. It was very vital for her case because the judge and the defence attorneys for the state wanted to ask her questions and wanted to hear her personal testimony so her being there via Zoom was crucial," Wihongi said.
She said the New Zealand consulate and Wihongi's lawyer had been in communication with the detention facility to ensure she was able to appear and they were told at the beginning of the week this would be possible.
She said restrictions on the inmate's phone at the detention facility prevented her from accessing the court's Zoom channels and court landlines on that line but she was sceptical of claims that internet connections were down at the facility.
"All this time Everlee would get off the phone with Betty [Everlee's mother], try calling these numbers that wouldn't go through, and she was able to call Betty again. If there's no internet at the facility how is she able to consistently make outgoing calls to her mother's phone but no other phones?
"We're extremely frustrated. She was feeling defeated. It's so hard to keep her hopeful when – in a sense – the system's letting her down," she said.
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