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The Honolulu Advertiser
Posted on: Sunday, February 7, 2010

Church leader may be deported

By Jim Dooley
Advertiser Staff Writer

Although Villamor Yasay's 1993 conviction for forcibly fondling an 11-year-old girl was erased from state court records in 2007, Yasay is on the verge of being deported to the Philippines for the offense.

A husband and father of three children, leader of the Bible Baptist Church in Kalihi and a longtime employee of a Honolulu charity, Yasay has been held without bail in a federal jail cell here since October 2007 while the deportation proceedings have been pending against him.

An appeal of the case will be argued this week when the U.S. 9th Circuit Court of Appeals meets in a special session at the University of Hawai'i Richardson School of Law.

Yasay's lawyers argued in one legal action that the deportation case "never should have come before this court" and "merits the term Kafkaesque."

Yasay's legal troubles began in 1992, when he was working as a Waikk convenience store clerk. He grabbed an 11-year-old female customer from behind and fondled one of her breasts.

Yasay, now 45, pleaded no contest in 1993 to third-degree sex assault and kidnapping using force to prevent his victim from escaping. At the time, the crimes were not deportable offenses but that changed three years later, with an amendment to federal immigration law.

Still, it wasn't until 2003 that federal authorities notified Yasay that his felony record made him subject to deportation.

Yasay, his lawyers and supporters protested that he had long since completed the sentence of 30 days in jail and five years of probation handed down in 1993 and had lived a law-abiding life since then.

Yasay has pursued a complicated series of legal appeals and court actions that resulted in erasure of his criminal record in 2007.

Those court actions brought objections from prosecutors and his victim but also produced an outpouring of support from family members, friends and co-workers.

"I love my daddy, I want him to be always with us," Yasay's 8-year-old daughter Marielle said in a hand-written letter to state Circuit Judge Michael Town in 2007.

"Please Judge, let my dad come home now," she wrote.

Town allowed Yasay in 2004 to withdraw his 1993 no-contest plea and set aside his conviction after his lawyers argued that Yasay hadn't been warned of the possible consequences the plea could have on his ability to remain in the country.

Prosecutors said that he had been given that warning, but court transcripts had been destroyed in the intervening years.

Deputy Prosecuting Attorney Thalia Murphy argued that if Yasay was allowed to withdraw his plea, "the courts would face an avalanche of plea withdrawal motions from defendants whose court records were no longer available."

After Town did grant the motion, Murphy's office re-indicted Yasay on the original charges.

The victim then appeared before Town in 2007 and tearfully deplored the reopening of the case and said she opposed any dismissal of the charges.

"He gets his way; he gets it cleared, and he gets to live his life and I get to live with the dreams and nightmares," said the 26-year-old woman.

Yasay then entered what is called a "deferred acceptance of no contest" plea to the sex assault and kidnapping charges.

The plea is a legal mechanism which results in a dismissal of the case and no criminal conviction if the defendant avoids further problems with the law for a specified period of time.

Town initially set the deferral period at five years, but two months later, in December 2007, he granted Yasay's motion for an "early discharge" of the case.

By that time, Yasay was already in federal custody and his lawyers argued unsuccessfully to an immigration judge and later to the federal Board of Immigration Appeals that Yasay could not be deported because he had not been convicted of a deportable crime.