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Assault suspect says actual date of birth makes him a juvenile
Portland Press Herald
Friday, June 29, 2012
By Ann S. Kim
PORTLAND - Mohammed Mukhtar, his siblings and his mother were all assigned the birthday of Jan. 1 before they arrived in the United States in 2008 as refugees from Somalia.
Mukhtar's date of birth is listed as Jan. 1, 1994, on numerous documents, law enforcement records and his Portland High School identification card. It was never an issue, until he was charged with gross sexual assault, burglary and other offenses in an attack on a woman in an apartment building in Parkside last month.
Mukhtar's defense contends that he actually was born on Oct. 25, 1994, so legally he's a juvenile, not an adult. On Thursday, his lawyer argued in Cumberland County Unified Criminal Court that the charges against Mukhtar should be dismissed because the juvenile court has jurisdiction over his case.
The difference matters greatly for the possible penalty: 20 years or more in prison for an adult, or a sentence for a juvenile that lasts until the age of 21. A judge can decide, after a hearing, whether a juvenile will be tried as an adult for serious crimes.
Jonathan Berry, Mukhtar's lawyer, said the Jan. 1 birthday is a legal fiction that has been perpetuated for the sake of bureaucratic convenience. In his motion to dismiss, he wrote that 42,082 refugees who entered the United States from 2005 to 2009 were listed with a Jan. 1 birth date.
Jamila Sangab, Mukhtar's mother, testified that birthdays aren't significant in her culture, but she knows her son was born on Oct. 25 because that's the date of her wedding anniversary.
Jan. 1 appeared on a form from the U.S. State Department in connection with medical exams while the family was in India, preparing to go to the United States, she testified through an interpreter. She said she had no documents with the October birth date.
Sangab testified that she knew of the incorrect date but didn't know how to get it changed. She said Berry was the first person ever to ask whether Jan. 1 date was her son's actual birth date.
Assistant District Attorney Deborah Chmielewski argued that Mukhtar and his family have adopted Jan. 1 as his legal birth date.
Chmielewski noted that Sangab and Mukhtar have signed documents that show the Jan. 1 date, and that Mukhtar has been in juvenile court with his mother at least three times without mentioning a different birthday.
She said the discrepancy was not pointed out to Mukhtar's juvenile probation officer, the school system or the Portland detective who interviewed him after his arrest last month.
Detective Maryann Bailey testified that Mukhtar gave his age as 18 and provided Jan. 1 when asked for his date of birth.
Abdi Ahmed Ismais testified that he knew the family in Somalia and remembered Mukhtar's birth date as Oct. 25 because his daughter, now deceased, was born on the same day.
Mukhtar's juvenile probation officer, John Coyne, testified that while a number of juveniles of Somali background have the Jan. 1 birthdate, others do not.
Superior Court Justice Thomas Warren did not rule Wednesday.
Mukhtar is accused of attacking a 50-year-old woman in an apartment on High Street. The woman told police that she sleeps very soundly because of medication and woke to find a stranger assaulting her.
Mukhtar was arrested after police found a fingerprint on a condom wrapper. He is being held in the Cumberland County Jail.
Jim Burke, a clinical professor at Maine Law's Cumberland Legal Aid Clinic, said he would not be surprised to see other defense attorneys raising similar issues about refugees' birth dates. He noted that the burden of proof is on the government.
"I would fully expect to see more of these coming up. It's a legitimate problem," he said.
Mistaken names, relationships and dates of birth are common on documents for refugees who are processed through large organizations, said Barbara Taylor, a staff attorney for the Immigrant Legal Advocacy Project.
The mistakes cause problems for students who aren't allowed to stay in high school because their documents indicate they are older than they actually are, and for older people whose paperwork indicates they are too young to qualify for Medicare, she said.
For immigration purposes, she said, it's difficult to correct a birth date mistake because it requires a birth certificate or a similar document, which many refugees don't have.
Staff Writer Ann S. Kim can be contacted at 791-6383 or at:
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