Not Just Any Immigration Case
Leon Wildes represented John Lennon and Yoko Ono from 1972 through 1976 and secured lawful permanent residence for them, despite much contrary legal authority, Lennon v. United States 527 F. 2nd 187 (1975).
Each year, Professor Wildes has students in his Immigration Law class study the case, and at the end of the semester, he delivers a lecture that contains many personal anecdotes. The following article comes from one of those lectures.
I received a call in mid-January 1972 from Alan Kahn, who had been a classmate of mine at law school. He was house counsel to Apple Records--the recording company used by the Beatles and John Lennon. Kahn said, "Leon, I think that you'll have a very interesting day if you have some time. We have real heavyweights here, John Lennon and his wife, Yoko Ono, who have some immigration problems, and I thought of calling you." What he didn't tell me was that he probably had called a number of other immigration lawyers, because when I met John Lennon and Yoko Ono later that day, their questions were so informed that it was quite clear that I wasn't the first lawyer being consulted.
I'm embarrassed to say that I said, "Alan, tell me, who is John Lennon?"
He said, "Leon, never admit that you asked me that question."
On the way down to the Lennons' Village apartment, he showed me a 1968 Certificate of Conviction issued by a British court, in which Lennon was convicted of possession of cannabis resin. I had no idea what cannabis resin was.
We arrived at a quaint apartment on Jane Street. In the back was a kitchenette, beyond which was a door leading into a bedroom, which I later learned was two stories high and was furnished with a huge TV set that was on all the time, with the sound turned off. Most of the Lennons' business was done in and around that great big bed. There I was to meet many of their newfound American friends.
Yoko was the first to emerge--a diminutive woman, obviously very bright--and she started telling me her situation. She explained that she had come to the United States to find and get custody of her nine-year-old daughter, Kyoko, from a previous marriage (to Tony Cox, an American citizen). She had sought the girl for some time and had twice been on the verge of receiving court orders awarding her custody, only to have Cox abscond with Kyoko each time.
She also found time to tell me that she was a rather well known conceptual artist--"con" art, it was called at the time. It seemed important to her to get across to me that she was somebody. Maybe that was a result of her living in the shadow of a very important person.
John emerged from the bedroom. He was fidgety and nervous, but warm and nice at the same time. He brewed tea for us all and started telling me his story.
He said that he had come to the United States on a waiver of inadmissibility, which was available for temporary trips. He cited the humanitarian reason of accompanying his wife to testify in the custody proceedings for Kyoko. He also told me of his conviction for possessing marijuana. He said, "The first thing I want you to know, Leon, is that I didn't do anything wrong. I had no drugs in my possession. The police planted them on me just as they planted them on Mick and George." I was supposed to know who Mick and George were.
He also told me that he had been tipped off that the police were going to raid the apartment where he was staying, although he hadn't known exactly when. He had cleaned the apartment, which belonged to some other musicians, and was no 1000 t on drugs at the time and did not have any around, so he felt at ease.
When the police did come, they broke the door in and charged John with possession of cannabis and obstructing justice. Obstructing justice, he explained to me, was "trying to get your trousers on so you can get to the door." He didn't get there fast enough, and they believed that he was using the time to hide something. They came with the dogs--and also with the drugs--conducted their search, and arrested everybody.
John was advised by his counsel to plead guilty to possession of cannabis and pay the fine. I said, "Just a moment. You were told to plead guilty?" He said, "That's what they told me, and I had good counsel. Of course, Leon, lawyers always give you the right advice, right?"
I registered that, although he obviously had told the lawyer he wasn't guilty of anything, the lawyer had told him to plead guilty. Perhaps there was something unusual about the British statute.
I asked, "What is cannabis?"
He replied, "Cannabis is a plant."
Then I asked, "What is cannabis resin?"
"Oh," he said, "that's hash."
"Is that marijuana?"
"Oh no," he said, "much better than marijuana!"
I recalled some criminal cases in which people were charged with possession of one drug and succeeded in getting the indictments dismissed because they were actually in possession of another. There was, to my mind, some distinction between the two, and I kept that fact in the back of my mind.
Finally, he said, "You know, they're passing a new law in England now, the Uniform Rehabilitation of Offenders Act, which says that if five years go by without a reconviction for the same type of offense, that's it! They erase the conviction for British purposes." He was referring to a legislative removal of a conviction, but I realized that such a removal does not generally have the same effect under US immigration law. However, there was little law on the subject, and the issue could be an interesting one.
After hearing John's and Yoko's stories, I knew that they really weren't asking for too much. Yoko said that they were trying to stay for just a couple of more months, but would require an extension to do so. They had less than two weeks before they would have to leave the country or face deportation.
I said, "If all you're looking for is more time to stay and search for Kyoko--and I've never seen a more compelling reason for an extension than having two child custody cases pending and trying to locate your own child--I would be happy to look over the extension papers. I'm quite certain we can get you a couple of months."
Then John said, "But Leon, that's all I can hope for. I understand that I can never become a US resident, and if they deport me, I can never come back. That's what happens when the charge is being deportable for conviction of a drug offense." He seemed to be repeating advice received from other lawyers.
I said, "John, I'm not absolutely sure that you are unable to get residence. First of all, I see a question with respect to the substance that you were convicted of possessing. It's possible that you might not have even needed a waiver of inadmissibility to come in temporarily. The statute says that 'narcotic drugs or marijuana' convictions cannot be overcome. Your conviction was for hash, which is not marijuana or a n 1000 arcotic. Second, there's something about this statute in England under which you were convicted that rubs me the wrong way. I can't understand why a top criminal attorney in England advised you to plead guilty." I also saw the Uniform Rehabilitation Act as having potential for a new determination because it was a new statute, and there would not yet have been a determination under American law. Eventually, these were the points that I cited in the Court of Appeals some five years later, when Chief Judge Irving R. Kaufman ruled that the conviction need not be recognized under US immigration law and ordered the Immigration and Naturalization Service (INS) to adjudicate Lennon's residence case without considering the conviction.
The Legal Strategy
Iexplained to the Lennons how I would handle their case. "If you are as important as everybody says you are, I may be able to put the government in a very embarrassing public posture. I could file two petitions, one for each of you, as 'outstanding persons in the arts or sciences whose presence in the United States is deemed by the Attorney General to be in the national interest.' The government might have to approve these petitions." Yoko smiled immediately.
I continued, "Then I would apply for residence for both of you. Let the government deny John's case and grant Yoko's--since there seems to be no reason to deny her application. This would place the government in the uncomfortable position, perhaps, of forcing you, Yoko, to choose to stay here with your child or go back to England with your husband. They're not going to look good doing that. Now, if all you need is a temporary extension, you don't need me. Mr. Kahn can have me review any extension application he drafts."
All of a sudden, the atmosphere in the room changed. And I will never forget that moment: they looked at each other and said in unison, "We need you!" That's when I knew I was being retained.
From that point on, life was changed for me. I went down to see the INS district director, Sol Marks, and asked him about an extension application. I had known Sol for over 20 years. We commuted on the train together in the summers and he would solve half my immigration problems on the trip. He is a very knowledgeable, capable man who had been with the Service for 38 years.
He called me the next day and said, "Leon, because it's you, you can get a one-month extension. Don't ask me any questions. These people will never get another extension" (in haec verba--that's what he told me). "And Leon, tell them to get out."
I went back to Jane Street, where I soon would become a frequent visitor. I practiced immigration law in my own office from 9 a.m. to 5 p.m. The Lennons would get up at 9 p.m. and stay up until dawn, often at the recording studio. I would go to their apartment after dinner to meet witnesses and go through papers, and, if I needed a secretary, they would have somebody available.
We decided to file two outstanding-artist petitions. We started contacting people for reference letters. By simply mentioning my clients' names, I could get through to nearly everyone. Yoko said she would be happy to get letters from Andy Warhol, Clive Barnes, Jasper Johns, Stanley Kubrick, Elia Kazan, Claes Oldenburg, Leonard Bernstein, and Virgil Thomson. If you're a collector of signatures, you would have valued my files at a million dollars!
I completed two magnificent applications and told Sol Marks that we were filing outstanding-artist petitions and that my clients had no intention of leaving the country. His immediate response was a letter enclosi 1000 ng Orders to Show Cause commencing deportation proceedings.
After filing the petitions, I received no adjudication. Two months later, under the Freedom of Information Act, I asked for permission to see all the government's files on Lennon. I appeared at INS one day, and found a table full of files for my review, but my petitions were not there. I smelled a rat and began to make a lot of noise for a very quiet lawyer. The petitions finally showed up in a sealed manila envelope--totally untouched.
I knew that if I didn't have an adjudication of those two petitions, I would not be able to apply for residence for my clients at the deportation hearing, which was coming up in a few days. So for the first of four occasions in this one case, I filed suit in Federal District Court for mandamus along with an application for an injunction against the deportation proceedings, pending adjudication of the two filed petitions. The preliminary injunction was granted and a court hearing scheduled.
Deportation as a Political Strategy
By the hearing date, I had still received no opposing affidavits from the government. It was strange, because in my affidavit requesting the injunction, I alleged that there was a government conspiracy to remove Lennon for political reasons.
Later, I uncovered documents, under the Freedom of Information Act, that showed that Lennon was being selectively prosecuted for political purposes by the Nixon administration. A memo dated February 4, 1972, was forwarded to former Attorney General John Mitchell and Bill Timmons of the White House by Sen. Strom Thurmond, describing Lennon as a threat to the US government and the reelection campaign of Richard Nixon because of Lennon's affiliations with members of the Radical Left, which was then trying to stimulate voter registration of 18-year-olds. The presidential election in 1972 was the first one in which 18-year-olds could vote, making 18- to 20-year-olds a very important constituency. I also uncovered a memo in which Marks is advised by Washington to deny all applications, to revoke the Lennons' voluntary departure privilege, and to schedule the deportation hearing for March 16, 1972--strong evidence of prejudgment of the case for political purposes.
At the hearing, Judge Whitman Knapp called both counsels forward and said that the United States Attorney had received a call from Sol Marks saying that he would adjudicate the papers that day. The judge said, "You know I can't order him to either approve or deny. He still has discretion to rule on these petitions." I was satisfied, and my suspicions of a government conspiracy were confirmed by the fact that the INS did not file affidavits in opposition to my claim of a government conspiracy to remove Lennon.
However, I said that I was unwilling to release the injunction against the deportation proceeding until "I see the decisions and until you, Your Honor, and I have original approvals or denials. At least with a denial, I know what my remedies are." The judge agreed, and I got another adjournment of the deportation case. Later that day, both petitions were finally approved. John and Yoko had been declared "outstanding artists whose presence in the US was, in the opinion of the Attorney General, prospectively beneficial to the national culture"! It was truly ironic, because Attorney General Mitchell was one of the parties most active in attempting to deport John Lennon.
They could now apply for permanent resident status in their deportation proceeding. Even though the government thought that it would look bad denying those petitions, it still believed that it could proceed with deportation because in its estimation, no one with a drug conviction could qualify for permanent residence. If I 1000 could prove otherwise, I would be creating an unbelievable precedent.
My clients, like all clients, were very nervous about hearings. They didn't know what to wear; they were afraid to testify; they were afraid of all the tricks the INS was capable of pulling.
Preparing for our first hearing in the deportation case, I called my opposing counsel, Vinnie Schiano at the Immigration Service, and told him how nervous John and Yoko were. He said, "Bring them up to my office, and we'll calm them down before we go into the hearing." They were soon very much at ease in the prosecuting attorney's office, for he was quite an expert on Beatles music. Soon Vinnie whispered to me, "Leon, I don't think they realize that I'm the prosecuting lawyer." I said, "John, Yoko, it's time to go into the hearing now, and you can feel relaxed because Vinnie here, he's the prosecuting lawyer." Lennon immediately grabbed a handkerchief from his pocket, dropped down on his knees, and started shining Schiano's shoes!
It became my practice to choose their clothing for all court appearances. For one hearing, I got to their apartment at 6:30 a.m. and asked them: "What clothes do you have that look alike?" It took us a little while, but they both had black suits, black ties, and white shirts. I dressed them up like two matching dolls and I said, "I want you to hold hands in the courtroom. I don't care who tells you not to do so. Sit together on one side of the table and don't budge. I'll sit on the other side of the table. If they say something about separating you, I want to see the saddest faces you can make." We survived the government's motion to sever the two deportation cases and try them seperately; their cases were to be tried together.
At another hearing, I needed to prove that cannabis resin was not marijuana. I was told by my friend Alan Dershowitz that Dr. Lester Grinspoon of Harvard Medical School was one of the best doctors in the country and an expert on marijuana. I called Dr. Grinspoon and asked, "Is cannabis resin marijuana or what?"
"Oh," he said, "cannabis resin is not marijuana. It's hashish!"
"Dr. Grinspoon, name your fee. I need your testimony."
He said, "I'm very sorry. You can cite my book, but I don't testify any more."
I was very disappointed, and tried to reach some other doctors. Then I got a call from Dr. Grinspoon. "Mr. Wildes, I haven't testified in years, but I have a special personal situation. I have a 12-year-old son who has terminal leukemia. Since we first spoke, I found out that he idolizes John Lennon. If you can get me some things autographed by John Lennon, I will be happy to testify at my usual rates."
I promptly left my office and bought lots of Lennon paraphernalia and had John autograph it all. I met Dr. Grinspoon the next evening at the Plaza Hotel with the whole pile of autographed stuff in anticipation of his testimony.
The immigration judge allowed the testimony even though it was not customary in deportation proceedings, because Grinspoon was obviously such an important physician.
Working the Press
The case continued, hearing after hearing after hearing. Nearly every night, I'd meet with the Lennons at their apartment or recording studio, the Record Plant, to work on the case. I was about Yoko's age, 42, and I bought my first pair of jeans and let my hair grow. John Lennon bought an "imm 1000 igration suit"--it looked something like what I'm wearing now--and got a shorter haircut.
In March 1973, Immigration Judge Ira Fieldsteel finally reached a decision in the case. I got a call from my old friend Sol Marks, who said, "Leon, I'm having a press conference at which the decision will be read. We're inviting you and Mr. Schiano, the prosecuting attorney, to be there and comment on the decision." In his 38 years with INS, Sol Marks had never held a press conference. Did he know something that I didn't?
Needless to say, I didn't trust the district director as much as I once had. I called my clients and asked them to round up journalists from the music and underground press. I wanted to feed each friendly reporter a question to be asked of Sol Marks at his press conference.
For the press conference, John and Yoko sent Sol a big bouquet of yellow roses. He was never so flustered. Nobody had ever sent this guy roses! All my new friends from Rolling Stone and the other journalists started asking their questions.
The decision of the immigration judge was announced. Yoko was granted permanent-resident status, and John's application was denied because of his conviction.
"Mr. Marks, did you have to bring this deportation proceeding?" "Oh yes. I'm required by law to do it." "Is there a procedure by which you might have avoided doing so, called the 'non-priority' program?" "No, there's no such procedure." "Were you told or encouraged by Washington to do this for any political reason?" "Oh no, it was my own idea." He lied through his teeth! When I examined him in a federal court deposition, he admitted that his answers to those questions were untruthful.
Later that week, we held our own press conference because it was time to file our appeal to the Board of Immigration Appeals (BIA). I arranged for it to be held at the Association of the Bar of the City of New York. Many high-profile people from the arts spoke. I gave a presentation on the law, what had been going on, and what we knew.
John and Yoko, full of surprises, as ever, asked me to stop the proceedings for just a moment. They took out tissues and started waving them, and declared in unison that they were hereby declaring the state of "Nutopia," a state with no borders, no laws, no exclusionary proceedings, no deportation proceedings, and no immigration lawyers! (I wasn't so sure that I was happy about the last part of the declaration.)
Today, if you visit Yoko at the Dakota, you will see a sign on the back entrance to her apartment that reads, "Embassy of the State of 'Nutopia.' "
Federal Court Times Four
This case took me to federal court on four occasions, during the five-year period of its litigation. The first lawsuit (Lennon v. Marks, 1972) resulted in securing the approval of the Lennons as "outstanding artists."
The second (Lennon v. Richardson, 73 Civ 4476, 1973) was under the Freedom of Information Act, in which I had requested documentation relating to the "non-priority program," a humanitarian program that was not a part of the statute or regulations, and simply a matter of secret law. In discovery proceedings, I was successful in learning about the existence of the program, by which aliens who were fully deportable--including those with multiple convictions for serious drug offenses, murder, and rape--were nevertheless permitted to remain in this country because of extreme hardship. As a result of the suit, I was successful in obtaining such "non-priority" status for John Lennon, and the program was made available to other aliens who 1000 might wish to apply.
The third Federal District Court action (Lennon v. United States, 73 Civ 4543, 1973) was the one in which I sued Attorney General Mitchell, Assistant Attorney General Kleindienst, Immigration Commissioner Farrell, District Director Marks, and others, alleging selective prosecution.
Finally, I appealed the Deportation Order to the Board of Immigration Appeals and argued Lennon's case in Washington. The BIA affirmed the Deportation Order and I appealed their decision to the US Court of Appeals (Lennon v. United States 527 F. 2nd 187, 1975).
About two weeks before the Court of Appeals entered its decision, reversing the BIA decision to deport Lennon, we won our application for "non-priority" classification, so that John would be permitted to remain in the United States, even without obtaining permanent residence. We went to federal court four times, winning each case on the basis of a strategy conceived at my first meeting with John and Yoko more than five years earlier.
Lennon Gets His Green Card
You can imagine my feeling after five years of almost daily work on this case. I called John and said, "John, you remember I told you we're probably not going to win this case, but that we might survive long enough for the law to be changed? I'm now calling to tell you that we actually won it!" Lennon was astonished: "Leon, what do you mean, won? Yoko is in the hospital about to give birth, and tomorrow is my birthday, and now you tell me we won?! Please stay at your desk, and Yoko will call you when I get to New York Hospital and you can explain it all to her.
I had been explaining things to Yoko all along. She was my veritable co-counsel in the case. She understood every nuance of every case I ever cited. John was brilliant; but when it came to these technical things, he relied upon Yoko completely.
Yoko called and said, "Oh, that's wonderful, Leon! Why don't you and your wife come over to the hospital as soon as you get the actual decision, and we'll read it together." She was interested in every word.
We went to the hospital and spent about two and a half hours there. They were elated. After asking Yoko's permission, John finally said, "Leon, did you know that all this time big lawyers like Edward Bennett Williams have been trying to get this case? Do you know why we stuck with you? You're the best immigration lawyer in the world. You're the only lawyer I understand and the only lawyer my wife is crazy about. You know, Yoko fires lawyers all the time. We also stayed with you because her tarot-card reader said 'Stay with Leon. He's going to win the case for you.' "
To which I replied, "Thank God for tarot-card readers."
My wife and I didn't get home until about 2 a.m., and I was bleary. It was about 5:30 a.m. when the phone rang and the voice on the other end said, "This is John."
I was half asleep and asked, "John who?"
"John Lennon, and I have a beautiful boy!" He said it just the way he wrote it in his song, "Beautiful Boy," which is one of my favorite Lennon songs. We had become very close, and although he wasn't my normal kind of friend, and I wasn't his normal kind of friend, we had a very warm relationship.
The next day, I went to buy John a present. It was his birthday. It was also his child's birthday. He had just become a father. He had won his case. He would have his final hearing, get a green card, and be able to travel an 5e1 d perform again! He would be free again.
I stopped at Mark Cross, not far from my office. What do you get for John Lennon? As I walked into the store, I saw in the showcase a passport cover emblazoned with the great seal of the United States. "I'll have that passport case," I said.
Some time later, I visited John and Yoko--they had moved from Jane Street to the fancier Dakota. I was waiting for them in their magnificent living room, where the furniture and carpeting are all white, as is the grand piano. When John and Yoko came in, I was at the piano playing a "beginner" piano song that I had recently learned from my kids' piano teacher.
John said, "Leon, I didn't think you knew how to play the piano. You know, I don't know how to play. All I can do is pick out chords."
I answered, "I wouldn't feel too badly about it--you're doing fine."
When Yoko walked in, John turned to her and said, "When Sean gets old enough to learn how to play the piano, I'm going to take lessons, too, just like Leon."
Can you imagine, if that beautiful man had lived more than five years after he had gotten his green card, what magnificent music he would have continued to bless us gwith?
Just imagine! 0