Waiting to Exile

Once permanent U.S. residents, these "non-deportables" are now locked up in what should be no man's land.

These two paths--anti-crime and anti-immigration--crossed that spring when Congress approved the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. Three years later, individuals like Loi Nguyen are locked up because of them.

"In 1996," says federal public defender Richard Cohen, who represents lifers out of his office in Sacramento, California, "Congress was falling all over itself to show how tough it was on criminal aliens and every other law-enforcement problem. But I don't think Congress foresaw the problem of non-deportables."

The 1996 legislation created the INS lifer phenomenon. Although INS officials estimate that 90 percent of resident aliens who end up as "aggravated felons" come from countries that will accept them back, that still leaves 3,435 non-deportables being held across the country as of October 1998.

The dilemma of how to deal with "criminal aliens" first arose with the Cuban Mariel boatlift, when Fidel Castro purged his country of undesirables by sending them to the U.S. Cubans who had committed crimes were held primarily at two centers, one in Miami and one in Atlanta. After riots broke out, the INS developed an administrative procedure that allows for an annual review to determine whether a Cuban detainee is fit for release. But that was in the Eighties, and so far, no clear policy exists for dealing with the criminal permanent aliens targeted by the 1996 legislation.

"Congress's intention with the...legislation of 1996 was that if you're foreign-born and commit a crime, you should never hit the streets again," says INS district director Joseph Greene. "It was a clear message, and it was backed up with funding. The system designed as a result does exactly that. You identify the person while they're still in prison, pick them up as soon as their sentence has been served, and deport them. And this notion is reinforced by provisions given to the INS which allows us to issue the deportation without a hearing."

Greene says the INS has some discretion to decide whether to follow through on this mandate in old criminal cases. For example, if a person committed a crime ten or twenty years ago and was released from prison before the 1996 mandates, the INS might let him stay in the U.S. if he stays out of trouble. This precedent was set in New York, when a Dominican-born permanent alien was detained by the INS upon returning to the U.S. from a visit abroad. "It turned out that the guy had committed a crime a long time ago," says Greene. "Now, the face reading of the new law said he should be deported, but the fact was that the guy had developed some deep roots in his New York community after his release from prison. He was a community leader, in fact. The guy ended up in jail for about eight months before the government decided to let him out based upon the fact that he had established those roots since his crime."

Greene says this decision hurt the INS's policy, because it sent a mixed message. "On the one hand," he says, "Congress gave us a clear mandate that all criminal aliens should be deported immediately. But on the other hand, it allows the INS discretion if the individual has demonstrated rehabilitation in the time between when they committed their crime and when this new mandate finally caught up with them." In reality, Greene says, such cases are rarities. "The majority of the cases we handle have current criminal histories, and they never get out of some sort of custody before they're deported."

The hitch in the system is a person like Loi Nguyen.
Attorney Jim Salvator represents Nguyen and several other lifers in Colorado. He says that holding an individual indefinitely is not only cruel, it's unconstitutional.

"Loi's case doesn't make any sense," says Salvator. "I simply cannot understand the policy at all, especially when the deportation process has broken down. Besides, Loi has already served his time as far as Colorado is concerned. So what's happening to him is a civil consequence after the criminal act has been paid for.

"Unfortunately, the INS feels that it's their duty to hold Loi until Vietnam takes him back--and nobody knows when or if that's going to happen--because they consider him a threat. What's even more horrible is the fact that his criminal activity happened when he was fifteen years old. And even though we've produced a lot of evidence about his rehabilitation, they won't turn him loose. It's an unreal, awful situation. It's an abomination."

Salvator says that when he's been able to get his clients' cases before federal judges, the judges have been sympathetic. In fact, nowhere is the absurdity of the law's application more evident than when a judge gets involved. When Salvator took his client Tuong Huan Van Dinh before Colorado District Court Judge John L. Kane last April, Kane made a powerful argument against the government's policy, as revealed in this transcript:

The Court: And under the authority of the Attorney General of the United States, somebody is being held without charge and without any kind of length of sentence. Or terms or conditions.

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