'Special interest' aliens can remain in New Jersey jails for months after being ordered
deported
Jim Edwards
New Jersey Law Journal
10-23-2002
The General Accounting Office, the investigative arm of Congress, is probing the New
Jersey branch of the Immigration and Naturalization Service to find out why Muslims
arrested after Sept. 11, 2001, remain in local jails, often for months, after being ordered
deported.
In recent weeks, GAO investigators have been interviewing New Jersey attorneys
specifically about the treatment of "special interest" detainees awaiting deportation in
northern New Jersey jails.
Richard Stana, director for justice issues at the GAO, confirms the probe, which is part of
a more general focus on how the Bush administration's post-Sept. 11 measures are
impacting civil liberties.
"They have a very broad scope for their investigation," says Amy Gottlieb, program
director at the American Friends Service Committee, who was present at a Sept. 25
meeting with GAO attorneys. "They asked about people with final orders [of removal],
cooperation with the police, how people were being picked up, and access to attorneys,"
she says.
The reasons for deportation delays are a matter of contention between the immigration
bar and the INS, and the former is hoping the GAO will shed some light on the latter.
The GAO's probe is the second to focus on treatment of Sept. 11 detainees in the jails of
Hudson, Passaic and Middlesex counties, N.J. Earlier this year, representatives of the
Office of the Inspector General, an independent unit of the U.S. Department of Justice,
visited the jails.
Both sets of investigators have been trying to speak to immigration lawyers, civil rights
groups and officials from the local INS and the jails, according to Robert Frank of Frank &
York in Newark, N.J.
One of their specific areas of concern is "people being ordered deported but still being
detained," Frank says.
In March, at the six-month anniversary of the attacks on the World Trade Center and the
Pentagon, the New Jersey Law Journal surveyed the cases of 85 special-interest
detainees and found that 12 appeared to have been held beyond the 90 days within
which the INS must remove an alien ordered deported. Since March, there have been at
least four more cases in which an attorney believed a client's detention had no
foreseeable end.
The number of special interest detainees dwindled to 35 as of Sept. 23, according to an
immigration official in Washington, D.C. The total number detained on immigration
charges as a result of the Sept. 11 investigation is 763, the DOJ says.
What proportion of that total consists of men who have been ordered deported but
remained in jail beyond the statutory period is unknown. The International Human Rights
Law Group in Washington, D.C., estimates that "dozens" of them are men who had
deportation orders that were ignored, according to Thomas Lynch, program associate for
special projects. "But it's impossible to nail down," he says.
The imprisonment is often prolonged, Lynch says, because the Federal Bureau of
Investigation has not issued its "clearance letter," a statement that the government's
investigation of the detainee for terrorist information has been completed.
An INS official in Washington, D.C., who agreed to comment anonymously, denied that
large numbers of detainees were denied their rights. "The government is not acting
without checks and balances," the official says. "This discretionary authority of the
government is subject to judicial review both at the administrative and at the judicial level,
in the federal court system."
It is not known how many of the detainees held beyond the 90-day deportation period
have sought habeas corpus relief. In May, Chief U.S. District Judge John Bissell of the
District of New Jersey predicted there would be an increase in the number of habeas
filings due to the Sept. 11 detentions. Bissell did not return a call at press time enquiring
whether his prediction had come true.
The clerk's office does not track its caseload in enough detail to be able to say whether
an increase has occurred, and its statistics for this year are not published for another
month or so.
Last year, prior to Sept. 11, only 59 habeas petitions of all kinds were filed in New Jersey's
federal court, according to the Administrative Office of the U.S. Courts. Since Sept. 11,
2001, attorneys have told the Law Journal of filing at least 13 habeas motions for special
interest clients.
One of those clients, Abu Shaker, has filed twice. Shaker, a Palestinian who has been in
jail in New Jersey for more than a year although ordered deported, has petitioned U.S.
District Judge John Lifland of the District of New Jersey for relief, but unsuccessfully. His
lawyer is Regis Fernandez, a Newark solo practitioner. The INS has twice demonstrated in
Shaker's case that it believes it can deport Shaker, saying it simply needs more time to
persuade Israeli authorities to take him. Each time his habeas was filed it stopped the
clock on the period within which the INS must remove Shaker, Lifland ruled.
Other detainees, says Lynch, may be fearful that if they file a petition of relief, the local
U.S. Attorney's Office will answer by filing criminal charges -- for example, for lying to an
immigration officer at some point in their interrogation. A criminal conviction, Lynch says,
may lead to harsh treatment in their home countries, such as Saudi Arabia.
It is not clear whether the notion that federal authorities retaliate with charges against
habeas filers is myth or truth.
A spokesman for the Department of Justice, Jorge Martinez, said he did not know the
number of habeas motions produced by detainees. "INS should be moving to deport these
individuals who have their final orders but each case is different -- it relates to the country
where they're going, the travel documents, etc.," he says.
Martinez denies that the DOJ holds criminal charges in abeyance pending habeas filings,
but adds, "If someone considers these charges as minor violations I would kindly
disagree. They are violations, period. They are against the law and individuals who violate
the law will be prosecuted accordingly."
Bissell, in his May speech, predicted that a further 100 pending criminal complaints would
likely add to the indictment pile created by Sept. 11 investigators, but he did not detail
what he thought might trigger those cases.
Certainly, many attorneys have a fear of filing. The fear appears to stem largely from a
widely reported case, that of Shakir Baloch, a Canadian deported in April. Baloch had
been held for seven months following Sept. 11. When his lawyers -- New York solo
practitioner Martin Stolar and Joel Kupferman, a cooperating attorney with the Center for
Constitutional Rights, also in New York -- brought a habeas motion, Baloch was
immediately charged with entering the United States illegally.
The fear has divided attorneys. Paterson, N.J., solo practitioner Aslan Soobzokov has
filed at least three habeas motions because he believes it pushes the INS to swiftly deport
his clients. But Clifton, N.J., solo practitioner Sohail Mohammed, like Newark's Hamdi Rifai
of Rifai & Associates, says he never files. "They could bring up some criminal charges,"
Mohammed says. "So my clients didn't want it."
The INS denies that detainees are retaliated against, according to the Washington official,
who asked not to be identified. "A person who has a final order of removal but who is also
implicated in an ongoing criminal investigation, would even prior to Sept. 11 remain in INS
custody as long as that criminal investigation were ongoing," the official says. "It would not
be in the best interests of the public or of justice to remove from the U.S., and from
government scrutiny and government control, the individual who is under investigation for
terrorism."
As for the fear of retaliation, "It's a fundamentally weak argument to say, 'Well, we're not
going to exercise our right to request judicial review of the government's decision to keep
these individuals in custody given the fact that our client is susceptible to being indicted
criminally,'" the official says.
In addition, the official says, the consequences of minor charges are unlikely to affect
their detention. "Uttering a false statement to a government official does not in and of
itself carry such weight that it would preclude an individual from being bonded on such a
charge."
Whether the FBI has the ability to prevent a deportation by withholding a clearance letter
is an untested matter.
"To me, the fact that they're entitled to a habeas doesn't absolve the government of its
obligation not to hold people illegally, particularly if it's not in isolated cases," says J.C.
Salyer, a staff attorney for the American Civil Liberties Union of New Jersey who has also
been interviewed by the GAO. "Hopefully the GAO will be in a better position to find out
the numbers than we have been."
On Sept. 26, Lynch's group prevailed upon the Inter-American Commission on Human
Rights -- part of the Organization of American States, to which the United States is a
signatory -- to demand that the Department of Justice take "precautionary measures" to
ensure that the rights of the detainees are being upheld.
"The commission considers that a situation of potential irreparable harm has been
demonstrated," wrote the commission's executive secretariat. "An undisclosed number of
foreign nationals who have been granted the right to voluntarily depart the United States
or have been ordered deported by an immigration judge but have remained in detention
beyond the timeframes under U.S. law within which the INS is required to effectuate their
removal ... There is no basis under domestic or international law for the detainees'
continued detentions."
The commission's findings are advisory and Lynch expects they will be ignored by the
federal government.
