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Two overstayers catch a huge break from the court — time served and probation

American Samoa High Court building

Pago Pago, AMERICAN SAMOA — Associate Justice Fiti Sunia emphasized during the sentencing of two men from Samoa convicted of drug charges, that sponsors need to understand and fulfill their responsibilities under immigration laws.

Sunia said failure on the sponsor’s part — of not renewing the alien’s immigration ID — is a failure not only of the Immigration Office but also to the American Samoa Government (ASG).

Felise Kapeli and Tanielu Fagamalie appeared in High Court last week for sentencing. Prosecuting the case was Assistant Attorney General Christy Dunn, while Assistant Public Defender Ryan Anderson appeared on behalf of the two defendants who have been in custody since their arrest on Apr. 17, 2019, unable to post a $5,000 surety bond.

Kapeli and Fagamaile were each charged with one count of unlawful possession of marijuana, a felony punishable by 5-10 years in jail, a fine of $5,000-$20,000, or both. However, under a plea agreement with the government last month, the defendants each pled guilty to the lesser charge of unlawful possession of marijuana, a class D felony, punishable by up to five years in jail, a fine of up to $5,000, or both.

Kapeli and Fagamaile admit that on Apr. 17th, they each had on them, a marijuana cigarette when cops came by to arrest them for disturbing the peace in front of a Pavaiai store. The pair appeared in court two weeks ago for sentencing; but due to their illegal immigration status, the hearing was continued and the sponsors were ordered to be present, along with a representative from Immigration.

Both defendants apologized to the court and begged for a second chance to return home to care for their families, especially their wives and children. Fagamaile said sleeping in prison for over 7 months is not a good thing to think about, especially when he knows his wife and kids are sleeping by themselves.

“Everyday… I always think of my family, especially my children. I want to know what they are eating for breakfast and dinner. I want to know whether they have food on the table. It’s sad that I’m in prison and therefore unable to fulfill my responsibility as a father because of the bad decision I made,” Fagamaile told the court.

Kapeli said the same thing, and asked for a second chance so he can find a job to care for his family and provide for his children.

Despite their illegal immigration status, attorneys from both sides asked the court to sentence the pair to a term of probation, to allow them to seek employment and provide for their families. The prosecutor  asked to release both men to Immigration so they can work on renewing their immigration papers.

Last Wednesday, only Fagamalie’s sponsor appeared in court. Kapeli’s sponsor is off island. Sunia said the reason the case was continued for two weeks, was the court wanted more information on the defendants’ immigration status. He said the government’s proposal to release both men to Immigration does not sit well with the court.

“Each defendant wants to stay in American Samoa. The government also recommends probation with the condition that both defendants be released to Immigration; but according to Immigration laws, these two defendants need to go back to where they came from, because of their illegal immigration status,” Sunia said.

Prosecutor Dunn said she spoke to a senior immigration officer who told her they are working with both sponsors to address the illegal immigration status of both men.

The defense responded and said the court ordered a representative from Immigration to be present during this proceeding; however, no one is present.

Sunia looked around before asking the prosecutor, “Where’s Immigration?”

Dunn replied, “I spoke to the Chief Immigration Officer (CIO) about this matter and he assured me that someone will be in court for this hearing.” Sunia called a recess and ordered Dunn to “get someone from immigration over here right now.”

When court reconvened, Fagamaile’s sponsor was called to testify on why Fagamaile’s immigration ID was not renewed for two years.

The sponsor, Agamalu Alosio of Pavaiai, admitted to the court that she failed to fulfill her responsibility as a sponsor under immigration laws, by not renewing Fagamaile’s ID for two years.

It was after Alosio’s testimony that Chief Immigration Officer (CIO), Peseta Dennis Fuimaono entered the courtroom. In delivering his decision, Sunia said both defendants spent 225 days in custody to await sentencing.

For Fagamaile’s case, Sunia said the court accepts his sponsor’s apology. But for Kapeli, the court is unable to hear from his sponsor because she moved to Alaska and abandoned Kapeli in American Samoa illegally.

Sunia told both men that the easy part for their case is that the court can easily determine what types of sentence they should get, based on the crime they committed; the hard part is, how to deal with their illegal immigration status.

Sunia said each man has asked the court to allow them to continue to stay in American Samoa; however, that decision is not theirs. It’s up to Immigration and the Immigration Board whether they are eligible to reside here or not.

“If the Immigration Office and Board decide that you should leave, then, you should leave the territory; but if they decide that you should stay… that’s their decision,” Sunia told both defendants with the CIO in court.

Sunia said the problem is the lack of communication between the defendants and their sponsors. Not only did their sponsors fail to fulfill their responsibility under immigration laws, but both men failed to do the right thing in order for them to stay in the territory legally.

“We have seen this failure many times and this failure has become a problem, not only with the Immigration Office but also for the territory. Moreover, immigration also failed to locate both of you to have your immigration status renewed, despite the fact that they have enough resources to do that.”

Fagamaile and Kapeli were each sentenced to 2 years in jail; however, execution of sentence is suspended and each man is placed on probation for 24 months under the condition that they serve 225 days at the TCF. They are credited 225 days time served.

Both defendants have been released from TCF to the custody of Immigration.