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Fate of overstayer convicted of assault depends on the current Amnesty Program

Terriorial Corectional Facility (TCF)
For now, he’s to be deported after serving 24 months at the TCF

Pago Pago, AMERICAN SAMOA — An overstayer from Samoa convicted of using a stick to strike the head of a minor has been ordered by Associate Justice Fiti Sunia to depart the territory after he is released from jail.

After several continuances in Teofilo Kuka’s sentencing — so both attorneys could work on how to address his illegal immigration status — it appeared during yesterday’s court proceedings that nothing had changed, he’s still an overstayer, his immigration ID expired over 3 years ago after his sponsor left the island for good.

Kuka was initially charged with second degree assault, a class D felony; and public peace disturbance - a misdemeanor. But under a plea agreement with the government, he pled guilty to second degree assault.

He admits that on Apr. 2, 2019 he struck a boy, 16, on the head with a tree branch.

According to terms of the plea agreement, a 15-year-old boy contacted police to report the assault, which occurred at a store between Sogi and Vailoa. When they arrived, cops found the victim sitting on the ground with blood coming from the back of his head. A Leone HS student was holding a piece of cloth on the wound to control the bleeding. The victim was later transported to the LBJ Hospital for treatment.

When questioned by police, Kuka confessed to striking the boy twice with a tree branch — once on the left arm and once on the back of his head.

When given the chance to speak, Kuka cried and apologized. He begged the court for another chance so he can return home to care for his wife and children, and asked that he not be deported, because he has no family in Upolu, they are all here in American Samoa.(The court was told that Kuka is a Samoa citizen but moved to American Samoa at a very young age).

Assistant Public Defender Rob McNeill asked the court to sentence his client to probation. But if the court orders Kuka to depart the territory, McNeill asked that the condition be stayed, to allow Kuka and his family to fix his illegal immigration status.

Sunia wanted to know if Kuka’s new sponsor has filed anything to the Immigration Office (IO). According to McNeill, Kuka’s family and his new sponsor are working on filing the petition to Immigration so Kuka can be eligible for the current Amnesty Program.

Sunia interrupted and told McNeill that there was some confusion last week when Kuka appeared for sentencing, as the court was told that nothing had been filed to the IO. McNeill clarified that according to his client’s family and the new sponsor (Kuka’s brother-in-law) they received the form from the IO, but haven’t filed the petition yet.

Sunia reminded McNeill that sentencing for Kuka was continued because the court was trying to figure out how to deal with his illegal immigration status. He added that when Kuka first appeared for sentencing last year, both attorneys had asked to stay the condition of departure and allow him to remain in American Samoa.

McNeill said his client is a suitable candidate for probation; he is remorseful and wants to go home, find a job, and take care of his family.

Prosecutor Laura Garvey asked the court to adopt Probation’s recommendation in the Pre Sentence Report (PSR) — for a probated sentence — with the condition that Kuka depart the territory due to his illegal immigration status.

Sunia was curious why the government changed its position, as far as allowing Kuka to remain in the territory. He wanted to know whether the Samoa Government (SG) changed its new policy regarding Samoa citizens who are overstayers and convicted of crimes in the territory.

According to Garvey, the SG’s new policy remains the same, and there is a list of things the SG needs American Samoa to do before it considers allowing their citizens back home. Among them, is that American Samoa needs to provide: health clearance, court clearance, and determine whether the person being deported back has any ties in Samoa.

In delivering his decision, Sunia said Kuka moved to American Samoa at a very young age; has lived here for most of his life; and was law abiding for many years until this incident.

He said it appears that the reason for Kuka’s illegal immigration status is the failure of his sponsor to fulfill her duties. “Not only did the defendant’s sponsor fail to fulfill her responsibility but it appears that our Immigration Office also failed on their part. The Immigration system also failed,” Sunia said. “This court is not an Immigration agency.”

Kuka was sentenced to serve 24 months at the TCF without any release. Once released, he is to depart the territory and remain outside of its borders. Sunia made it clear to both parties that the court will call another hearing to discuss Kuka’s immigration status if he is accepted under the current Amnesty Program.