1982 DRUG CONVICTION HAUNTS BRITON WHO HAS WORKED IN U.S. FOR 23 YEARS

After 23 years working as a nanny in the United States, Maria Barry is fighting an uphill battle to keep from being forcibly returned to England for good.

In 1982, Barry pleaded no contest in a Broward court to possessing a small amount of cocaine. She served 1 1/2 years' probation and performed 100 hours of community service.

She thought she had moved on.

But under terms of a tough 1996 immigration law, the conviction means deportation. Barry's only hope to stay in the United States -- she now lives in New York City -- is to make the past conviction disappear.

In a last-ditch effort to stay, Barry, 44, is asking Broward Circuit Judge Victor Tobin to withdraw the plea she agreed to when she was 26, which would allow her to have a new trial. She argues that her attorney at the time told her a plea would have no effect on her immigration status.

"She's got nothing to lose and the state has nothing to gain," said her new attorney, Patrick Rastatter. "If you've lived here and been a meaningful member of the community for 18 years, what better evidence is there that you are likely to continue to do so?"

Barry is one of hundreds of immigrants nationwide motivated by fear or the actual threat of deportation, who are now trying to fight old charges to which they once pleaded guilty and for which they have already been punished.

Some are spurred by a recent Florida Supreme Court decision that allows those facing deportation to set aside a plea if they can show it was based on incorrect legal advice. Others are simply trying to have records of minor offenses expunged.

Several bills in Congress propose to relieve the harshness of the 1996 law, though it is unclear whether legislators will take action before the November election. The INS is also preparing internal guidelines to direct local districts to use prosecutorial discretion, perhaps by ranking cases to pursue for deportation.

But people like Barry say they can't count on those reforms becoming reality in time to help.

"Many of our families are taking this route because it is the only one available to us," said Laurie Kozuba, founder of Citizens and Immigrants for Equal Justice. The Mesquite, Texas-based group represents 750 families nationwide threatened by deportation. "You do what you have to do," she said.

Since the immigration reform law took effect, the State Attorney's Office in Broward has handled dozens of cases like Barry's every year, said Assistant State Attorney Joel Silverschein. Most such requests are denied, he said, because prosecutors are often able to use court records to show the defendant was indeed warned that pleas can have immigration consequences.

The state has no say in immigration matters, said Silverschein. But it has fought attempts to take back plea agreements made in good faith, even if those pleas now have unforeseen consequences under federal law.

"We are not deporting her, the federal government is," said Silverschein, who is challenging Barry's contention she was misadvised.

"We're not the bad guys here," he said. "We have a valid plea agreement. There is no basis, all these years after the fact, to just put it aside."

Likewise, the INS has said it has no choice but to enforce the law as passed by Congress.

The 1996 Immigration Reform and Immigrant Responsibility Act was intended to crack down on criminal aliens, particularly violent offenders and drug traffickers. It stipulates that any legal resident convicted of an "aggravated felony," illegal drug possession or crimes involving moral turpitude, must be removed from the country.

Since its passage, INS more than doubled the number of criminal aliens it deports. In the 1999 fiscal year, the agency sent home 66,923 of them.

Risky Move

For those fighting deportation, reopening old cases can be risky.

If courts agree to withdraw their pleas, they can be retried and perhaps found guilty. For example, INS detainee Ralph Richardson, who is fighting removal to Haiti, faces a new criminal trial in Pensacola in October on a 1993 drug trafficking charge.

Richardson asked the state to set aside his plea in the criminal case after losing several other appeals bids to be freed from INS detention.

For Richardson and Barry the hope, albeit slim, is that the prosecutor will not have enough evidence to even attempt another trial, or will go to trial and lose. In older cases, witnesses may have died or moved away. Evidence and records may be lost or destroyed.

And if the convictions disappear for any reason, the INS has no basis to deport.

"You are really looking for a technicality to hang your case on," said E. Ross Zimmerman, a criminal attorney in Plantation who has handled eight similar cases. "You can do it, but it ain't easy."

Barry knows.

After completing probation in 1984, Barry had no further run-ins with the law. She claims she never used cocaine but got caught in a traffic stop while carrying drugs to a friend.

She divorced, moved to New York City and then remarried. She began to study psychology and social work at Long Island University. She is on the dean's list, she said. In addition to caring for the son of a Brooklyn lawyer, she runs a small business selling motorcycle paraphernalia.

But new troubles began last Easter. As Barry returned from a family reunion in England to New York's Kennedy Airport, INS officers seized her British passport and her American green card.

Surprise Surrender

She answered "yes" when an immigration agent asked if she had ever been convicted of a crime.

"I was just speechless when the guy said, 'Come with me,'" said Barry.

"The odd thing is that all this is happening just at the point when I am the most productive I've ever been in America."

Barry was ordered to appear for a deportation hearing in July.

Under the old rules, an immigration judge could weigh whether a person had been rehabilitated and whether they had ties to the community in deciding whether to deport them.

The 1996 law took that discretion away.

That makes Barry's deportation almost certain -- unless she can erase the conviction.

Critics have long blasted the fact that the immigration law is retroactive. They say the best way to fix it is through Congress.

Barry acknowledges chances are slim that she can avoid deportation.

"It may be too late for me," she said. "I can certainly live in England, although returning will be traumatic and a horrible stigma. I am angry at the injustice of the whole thing."