By Lynn La
Small details hold Pablo Airaldi’s life hostage. He doesn’t speak any Spanish. He doesn’t know who the President of Uruguay is or the country’s national anthem. He doesn’t consider Uruguay to be his home, but he spends some of his time at the Hudson County Correctional Center in Kearney, N.J. learning Spanish, just in case. Just in case the day comes when a judge deports him to the country he left behind when he was six.
Two months ago, Airaldi was a free man living in Bed-Stuy and working at Greenpoint Bikes. He sold and built bikes out of spare parts, sometimes allowing customers to barter items if they did not have enough money. He spent some nights sleeping at the shop. A few times he let others, like the street character locals call “Ziggy,” sleep there, too.
“Everyone wants people to live life a certain way. Have a house, kids, a job. That’s not me. I just want to do what I want to do,” Airaldi said. “I want to know my neighbors, not compete with them over whose lawn is better.”
But sometimes doing whatever you want can get you in trouble. And for an immigrant like Airaldi, that can mean the risk of deportation, a possibility that he now faces.
Airaldi came to the United States with his mother, Alba Drake in 1988. Three years after their arrival, they both became permanent legal residents when she married an American from Indiana.
But at age 15 he decided to leave home, citing a difficult relationship with his stepfather. He bounced around Indiana, living a transient’s lifestyle for a couple of years. Then, a month after Airaldi turned 18, his friend stole $2,000 worth of car parts. Aware that they were stolen, Airaldi nonetheless kept the parts in his own vehicle. He was later caught and pled guilty to auto theft.
Airaldi, who is now 28, has no disillusions of what he did. He admits that he broke the law and chalks it up to being young and stupid. Were it not for the problems this crime is now causing he could have, and did for a while, put the auto theft charge behind him.
Besides, said Airaldi, pleading guilty was the only choice he knew to make at the time. Unable to afford his own lawyer, he was appointed a public defender who, he said, suggested that a plea would be less risky than fighting the charge and receiving jail time if found guilty.
Still, the details are catching up to him. “What I was charged with was not what I did,” he said. “I did commit a crime, but it wasn’t that one.”
Although he successfully avoided jail, Airaldi currently finds himself in one 10 years later, an unexpected consequence of that guilty plea. After pleading guilty in 2000, Airalda received a 545-day suspended jail sentence plus two years probation. The suspended sentence allowed him to remain free as long as he did not violate the terms of his probation. He served it without incident and decided to move to Bloomington, I.N.
Eight years later, Airaldi decided to take part in the Cycle Messenger World Championship in Toronto, Canada. At this point, he had already made a living working in New York as a bike messenger for years, five of which were spent in Manhattan. Although issues with his immigration status did cross his mind, for the most part he figured there would be no problems.
“I was kind of worried about it at first,” said Airaldi. “But really, I had no idea. When I became legal in 1991, I thought it would be okay. As far as I knew, I was doing everything right.” Airaldi even modeled a fashion spread on bicycle pants in the New York Times in its preparation for the CMWC.
The trouble began when Airaldi and his friends were stopped between Canada and the United States. Details about his past raised a red flag with border control. Based on his auto theft’s guilty plea in criminal court, the Immigration and Customs Enforcement charged him with “moral turpitude within five years of entry in the United States,” under immigration law.
Although ICE let him go that day at the border, it did begin an investigation and removal proceedings. For the next two years, Airaldi was in and out of court every couple of months fighting to stay in the United States.
Because ICE later found that it was well over five years since Airaldi arrived to this country when the auto theft occurred, the initial charge did not stick. Instead, ICE was able to change the charge to aggravated felony since Airaldi had a “theft or burglary offense, for which the sentence imposed was one year or greater.” In October 2010, while attending a court hearing for a separate drug possession charge that was later dropped, ICE detained him on the spot.
“Aggravated felony is the most important definition in immigration law,” said Stan Weber, the immigration lawyer who Airaldi and his friends are in the process of hiring. “You must try to avoid that at all times.”
Weber says that the biggest problem with the country’s immigration system is its bureaucracy. “You have to continually try to examine the actual effect of these laws on human beings,” he said. “As long as there is black ink on white paper and dry law, it will remain that. But there is blood in these people.”
But Ivan Ortiz, a representative of ICE’s Public Affairs Office in New York, said the number of years lived in the United States is irrelevant for someone like Airaldi.
“The thing is, it doesn’t matter how long you’ve been in this country as a legal permanent resident. If you are an aggravated felon, you are able to be deported and ICE will start removal proceedings,” he said.
Ortiz cited the 2009 case of Youssef Megahed, an immigrant and student at the University of South Florida. ICE tried to deport Megahed, a legal permanent resident of 11 years, after a terrorism investigation began when police found fireworks in a search of his car. Both the deportation and terrorism charges were unsuccessful, however, due to lack of evidence.
“Not everyone is a terrorist obviously,” said Ortiz. “But the ICE’s burden of proof against an immigrant is a lot, lot, lot, less than in the criminal court.”
Airaldi’s friends say the gravity of the situation came as a surprise. “He wasn’t aware how serious it was,” said Victoria Tychan, 27. “We thought it was something that could be fixed pretty quickly, which has proven not to be true. It felt like a misunderstanding.” Tychan, a graduate student at the New School, has been helping Airaldi by researching immigration law and helping him find a lawyer.
She, Hennerty, and Becky Wise, 26, are the three who have been campaigning on his behalf, trying to raise money and awareness of his case.
Their hope is in winning post-conviction relief, and through it reducing his original sentence from 545 days to 364 days. Shortening his old sentence to anything less than a year in criminal court would mean that Airaldi would not be considered an aggravated felon by legal definition.
“If you have been convicted of an aggravated felony, it makes you subject to be removed,” said Weber. “But what people fight about in immigration court is when they might have a form of relief to overcome that. It’s not the issue of whether or not you’re removable. It’s if you have a ground for relief of removability.”
In Airaldi’s case, his ground for relief is based on the fact that the possible immigration consequences of his 2000 guilty plea were not made clear to him.
In March 2010, the Supreme Court ruled in Padilla v. Kentucky that immigrants charged with a crime must be told by their lawyers that a guilty plea can result in deportation. The case revolved around Honduran immigrant Jose Padilla, who took the advice of his lawyer and pleaded guilty to a drug charge but was unaware that it would put him at risk of deportation. He claimed ineffective assistance of counsel, which can enable a conviction to be overturned under the Sixth Amendment.
Using Padilla v. Kentucky as precedent, Airaldi has a chance to have his petition for post-conviction relief approved, said Tychan. If that happens, Airaldi’s record would change on paper, and it would show a conviction that is less than a year long. This would consequently demote his aggravated felony conviction in immigration court and he would not be considered deportable any longer.
But for Airaldi, it isn’t just about uprooting and changing the past. Being suddenly detained has also cause his present life to come undone.
The owner of Greenpoint Bikes has already hired a replacement. Adam Sosnicki, 38, originally hired Airaldi through Craigslist. Sosnicki already owned Uro Café and wanted to open a bike store as well, despite knowing little about them. Sosnicki said that when Airaldi walked in, Airaldi was the first prospective employee Sosnicki liked.
“He was one of the best guys who came in when we opened,” said Sosnicki.
Although Airaldi only worked at the store for three months, he was so commonly associated with the shop that many people, including his friends, mistook him as a co-owner.
“Adam may be the main financer, but Pablo built out the whole place,” said Hennerty. “It’s common knowledge.”
Although Sosnicki thought it was odd, he admits that he wasn’t there at the shop most of the time and that Airaldi played a big role in the store’s nascent stages. Airaldi organized an art show at the building to attract customers and to increase the store’s presence in Greenpoint. It only began to irk Sosnicki when a local website wrote that Greenpoint Bikes now had two owners.
Sosnicki chose not to confront Airaldi, who he believed helped to perpetuate the misunderstanding, and remains hesitant to talk about it now in fears of hurting Airaldi’s immigration case.
“He’s locked up, I feel bad. If it helps his case that people think he owns it, okay,” said Sosnicki. “He is knowledgeable, in all honesty he is, about bikes,” he later adds. Sosnicki has since hired a replacement for Airaldi and said the shop is doing “better than ever.”
In the meantime, Airaldi remains in the Hudson County Correctional Center until his next hearing on January 6, 2011. The possibility of Airaldi returning to the bike shop, however, is unlikely.
“I don’t really want to talk about it,” said Airaldi avoiding the details. “From what I know, there was a verbal agreement that had been said, but it’s been disregarded. It’s a sore spot for me but what can you do? That’s what happens when you go to jail.”