Personal Injury

Debating Undocumented Immigrants' Rights

Locked Up Tight

Adapted from Margaret Graham Tebo, "Locked Up Tight," ABA Journal (Nov. 2000): 44–51.

In county jails, urban holding cells, and detention yards across the United States, some 3,000 prisoners sit entrapped in the ultimate catch-22 of immigration law: They don’t qualify for entry to this country, but there is nowhere else to send them. And so they wait: for months, years, and sometimes for what may amount to the rest of their lives.

Officially, they are not prisoners but detainees—immigrants labeled deportable by the U.S. Immigration and Naturalization Service (INS). Yet they are treated the same as their fellow inmates—the convicted criminals with whom they share cells. The detainees wear prison uniforms and have the same rules about visitors, contraband, and even personal hygiene, as all of the "regular" prisoners.

Most detainees have committed a variety of immigration violations, from overstaying a visa to working without authorization. A few have applied for political asylum, but it has been denied. All are lost in the limbo known as indefinite detention.

These prisoners are being held indefinitely because the United States doesn’t have anywhere to deport them. Some are not citizens of any country, having given up or forfeited their birth citizenship when they immigrated to the United States. Some are from Gaza, the Palestinian homeland, much of which is technically not a part of any country. Some are from Vietnam, Cambodia, Laos, Cuba, or former satellites of the Soviet Union—places with whom the United States has no official diplomatic ties and therefore no way to ask for the countries to take back their former citizens.

The INS insists that it is required by law to hold these detainees until an opportunity to deport them somewhere arises, even though there is virtually no prospect of that.

Secret Evidence
There are detainees who don’t know why they are being held. Citing national security concerns, the Justice Department has concluded that some deportable immigrants should be detained on the basis of secret evidence—not even their lawyers are privy to the specific allegations.

Take the case of Mazen Al-Najjar, a native of the United Arab Emirates who is an engineer and former professor at the University of South Florida in Tampa. Al-Najjar entered the United States on a student visa in 1981. When the visa expired, he stayed. Now he is married to a fellow Muslim from Saudi Arabia. They have three daughters, all American citizens. His father and two siblings are naturalized U.S. citizens, and his mother is a legal permanent resident.

In 1985, the INS opened deportation proceedings against Al-Najjar for having overstayed his visa; but those proceedings were closed in 1986 by a hearing official exercising his discretion. In 1995, Al-Najjar asked for his case to be reopened so that he could apply for political asylum and permanent residency.

His petition for political asylum was rejected in May 1997 on the grounds that he did not sufficiently demonstrate that he faced persecution in the United Arab Emirates. That same month, the INS detained Al-Najjar as a deportable alien. It cited secret evidence that he was "suspected of affiliation with a known terrorist organization." After an in camera (private) review of the evidence, an immigration judge upheld the detention.

Al-Najjar has been held in the Manatee County jail in Florida ever since. His lawyer, Martin Schwartz, has filed a series of appeals seeking the evidence and Al-Najjar’s release. However, nothing has been revealed whatsoever about the source of the allegations. The INS has implied that the FBI focused on Al-Najjar because he attended several academic conferences at the same time as a man who was a member of the Islamic Jihad, a Middle Eastern terrorist group. The conferences attended by both men involved study in their academic fields; there is no evidence that Al-Najjar met the suspected terrorist.

According to Schwartz, the fact that no charges have been filed while Al-Najjar remains in jail is a violation of his due-process rights. "If they have evidence that my client did something wrong, charge him, have a trial, let us see and defend the charges," he says. "Otherwise, let him go. That’s the way our system is supposed to work."

In early 2000, a federal district court in Florida agreed that using secret evidence in Al-Najjar’s case was a due-process violation and ordered a new detention hearing. The order said that the INS must either share the nature of the allegations with Al-Najjar’s lawyers or not consider that evidence in the new hearing. Because the INS is considering an appeal of the order, Al-Najjar was still in jail last fall.

Tight New Controls
Since the mid–nineteenth century, the United States has never had a completely open immigration policy. However, for many years the process progressively eased. INS hearing judges paid more attention to individual circumstances. And the courts reviewed INS officers’ decisions, acting as final arbiters of whether particular cases met constitutional muster.

Then organized terrorism came to U.S. soil. The 1993 bombing of the World Trade Center in New York City caused many Americans to realize that they could be targets even on their home soil. When the Murrah Federal Building in Oklahoma City was bombed in 1995, the immediate reaction of law enforcement officials and many citizens was to assume that it too was the act of foreign terrorists. The fact that two native-born Americans were later charged in that bombing did not lessen antiforeigner sentiment.

Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996. Its sponsors said the law would prevent immigration by known terrorists and give the INS authority to deport those it deemed a threat to national security.

This act gave the INS unprecedented powers. For example, it has attempted to limit the ability of courts to review deportation and detention decisions made by immigration judges, and it designated the INS Board of Immigration Appeals as the final arbiter of most INS decisions. Although some federal courts have said that this means they have no jurisdiction over immigration cases, a few have ruled that they can review constitutional violations.

Under the act, the INS was also authorized to use secret evidence to detain and deport suspected terrorists. It could indefinitely detain deportable aliens even when there was virtually no chance their former countries would allow their return. The INS can also take citizenship away from nonnative-born U.S. citizens convicted of certain crimes. The act greatly expanded the scope of crimes considered aggravated felonies, which are grounds for deportation. And the legislation was made retroactive, meaning any person convicted of a crime now reclassified as an aggravated felony—no matter how old the conviction—could be deported. It also made it impossible for anyone convicted of even a minor crime to become a naturalized citizen.

But it is the indefinite detention of some deportable aliens, especially when the allegations against them are kept secret, which has raised the most eyebrows among immigration lawyers, civil rights activist, courts, and even a few members of Congress. Complicating matters, the detainees are often held far away from their U.S. homes and are moved in seemingly arbitrary ways, making it difficult for lawyers to work with them.

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