Posted on: Tuesday, July 17, 2001

Appeals court rules against Chai's owner

By Yasmin Anwar
Advertiser Staff Writer

As Chai Chaowasaree built a Thai fine-dining tradition over the past 13 years, he has fought unsuccessfully to stay in the United States. Jeff Widener • The Honolulu Advertiser

A federal appeals court yesterday cleared the way for the U.S. Immigration and Naturalization Service to deport Chai Chaowasaree, a popular Honolulu chef and restaurateur whose recent five-week prison stint brought him widespread community sympathy.

In a devastating blow to the 38-year-old Thailand native who has been fighting deportation on a fraudulent marriage charge since 1991, the 9th U.S. Circuit Court of Appeals upheld federal Judge David Ezra's earlier denial of an injunction barring Chaowasaree's deportation.

Chaowasaree left the United States last year to visit his ailing father in Thailand, violating a law that says he cannot leave the country while an appeal is pending.

"We will proceed to remove him," said INS district director Donald Radcliffe yesterday as he waited for INS lawyers to review the appeals court decision. He said he assumes Chaowasaree will be deported "in the next several weeks."

Lex Smith, Chaowasaree's lawyer said his client is considering several options to stay in the United States, and is not ruling out an appeal to the U.S. Supreme Court.

Chaowasaree said he will follow his lawyer's recommendations, but said he is prepared to leave the country if need be.

"I'm very upset and disappointed, but I have to move forward," Chaowasaree said.

Moving forward for Chaowasaree could mean opening restaurants in Thailand and Japan. He said he has had offers to do both. He also has buyers poised to take on both his Honolulu restaurants, Chai's Island Bistro and Singha Thai. He said they will be sold under the terms that they continue to operate "as is," with existing staff and management.

"No matter where I go, I can become a success," he said last Friday as he waited for the appeals court to make its decision.

The case stems from a decade-old INS decision that Chaowasaree's 1986 marriage to a Big Island waitress was a sham. Chaowasaree appealed a deportation order, but inadvertently abandoned that action last year when he visited his family in Thailand, and according to the INS, "deported himself."

Chaowasaree claims INS officials led him to believe he could leave the country on a temporary green card. He had hoped the appeals court would conclude that he did not knowingly flout a 1996 immigration law that has stripped the courts and INS of virtually all discretion when dealing with those who break the rules.

As for the INS ruling that his marriage to Victoria Dubray was fraudulent, he insists their marriage was genuine, but didn't stand the test of time.

"I've done nothing wrong," he said last week.

Yesterday, he could not keep the disappointment out of his voice. He had hoped to stay in Hawai'i and expand the restaurant business that he started in 1988, inspired by such celebrity chefs as Roy Yamaguchi, Russell Siu and Alan Wong.

Under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, he is barred from returning to the United States for at least five years.

That's a long time to be away from his adopted homeland. A graduate in business from Bangkok University, Chaowasaree came to the United States in 1985 on a tourist visa, and lived briefly in New Jersey and Los Angeles before settling in Hawai'i.

Chaowasaree was born to a Chinese father and part-Thai, part-Chinese mother and grew up, the youngest of seven children, in a modest home near Bangkok's Oriental Hotel.

His family ran a popular restaurant called Ocha, where his mother worked from morning until night. As a boy, he followed her to market to buy produce and around the kitchen. His parents wanted him to go into pharmacology, but he was interested in the restaurant business.

"It's in my blood," Chaowasaree said.

His first stop in Hawai'i was the Big Island, where he worked in a small Thai restaurant called Lanai

Siamese Kitchen in an industrial section of Kailua Kona. There he met Dubray, and they married.

From being a chef in the kitchen, he was promoted to manager of the restaurant. Then one day, he took a trip to Honolulu to take care of his immigration paperwork and decided he wanted to stay. He borrowed money from his family to open Singha in 1988, and became a pioneer of fine dining Thai restaurants on O'ahu.

Periodically, his parents would visit. But at 84, his father was growing increasingly frail, and was to undergo a triple bypass heart surgery. On Jan. 20 last year, Chaowasaree flew to Thailand to see his father. He applied for advance parole and an INS clerk issued him a temporary green card.

He returned to Hawai'i two weeks later to discover that by leaving the country, he had abandoned his deportation appeal. His lawyer took his case to the 9th Circuit Court of Appeals.

With all appeals exhausted 10 months later, he was told to report for deportation on Feb. 13 of this year. When he did so, he was booked at the Honolulu city jail.

"It was just awful," he said.

He was transferred to the O'ahu Community Correction Center, from where he fully expected to be deported to Thailand. The weekend came and went and no one took him to the airport. He soon learned that Judge Ezra had allowed him to stay in the country pending his deportation appeal before the 9th U.S. Circuit Court of Appeals. The caveat was he would have to stay in prison.

He hated the uncertainty of not knowing what was in store for him. Most of all, he worried about how his restaurant staff was coping in his absence.

But after reading about Jesus' crucifixion in the Bible, he says, he decided that he had little choice but to leave his fate in the hands of a higher power. It was then that he started to relax and make friends.

In retrospect, Chai says, those five weeks in prison were like a vacation from the stresses of running two restaurants. He got a sun tan from his daily workout in the yard. He read the New Testament from front to back.

"I gained five pounds when I came out," Chaowasaree said.

On March 23, Chaowasaree was freed on parole after the INS decided he was not a flight risk and that a decision on his deportation case was unlikely to be issued within 90 days of his incarceration. Federal law requires that a prisoner be released if an appeal is not completed in that time.

Since his release, he has resumed his busy schedule at the restaurants. And until yesterday, he was feeling optimistic that he would stay in the United States and open more restaurants.

Now, he's uncertain. "God has a plan for me," he said. "But I don't know what it is."