Waiting to Exile

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

Mr. Salvator: That's the complaint, Your Honor.
The Court: Let me hear from the government for a minute.
Mr. Pestal (for the INS): We do acknowledge, Your Honor, that this Court would have jurisdiction to entertain matters of a substantial constitutional nature, but we do not believe that that has been presented here...

The Court: You don't think it's a constitutional question that somebody's been held for two years now without any charges, without any, any basis for holding them other than they can't find a country that will take him?

Mr. Pestal: Well, first of all, Your Honor, if we start with the Constitution. The Constitution clearly gives Congress the authority to make laws of immigration and naturalization. And they have done that here; and they found that somebody that commits a serious crime, such as the petitioner, is subject to deportation.

The Court: I understand that, but that doesn't even get to the point.
Mr. Pestal: He's no longer a lawful, permanent resident of this country, and therefore he has no legal status.

The Court: Then let him loose. What I'm telling you right now is that the government of the United States has no authority to hold anybody without charge and without reason. Nobody. And that's just--that's just pure constitutional law.

Mr. Pestal: Well, he's not--he's not being held as punishment. He's being held as to--to effect deportation.

The Court: I know of no law, international, national or otherwise, that says people can be held prisoner without charge and without cause.

Mr. Pestal: I know they're still in the process of getting travel documents.
The Court: What does that mean--they're in the process of obtaining travel documents? Are you talking about Bleak House, are you talking about something that's going to happen thirty years from now?

Mr. Pestal: Well, as far as the timing, I'm not, you know, specifically aware of what, you know, what's pending currently.

Judge Kane's reference to Dickens's Bleak House--where English prisoners waited so long for their trials that they died in prison before getting their day in court--seems all too appropriate. Even though most lifers haven't yet had their turn before a judge, lawyers like Salvator are working to change that. But the INS fights them every step of the way.

Salvator took one client, a man originally from Cambodia who was arrested for robbery and subsequently ordered deported, in front of District Court Judge Wiley Daniel in hopes of getting Daniel to set bond for his client. Judge Daniel ruled in the detainee's favor and set bond, but the government successfully blocked the order. The two sides volleyed back and forth for months until the case finally reached the Tenth Circuit level, where a judge once again ruled in the detainee's favor. Salvator says the only thing now holding up his client's bond is the federal court's overcrowded docket--and that's another waiting game that can last months.

Richard Cohen of the federal public defender's office in Sacramento, California, says his office has represented hundreds of non-deportables.

"It was really dumb luck that our office got into these cases in the first place," says Cohen. "We wouldn't have even known about these lifers if a judge hadn't approached my office and asked us to take a look at their cases. We were shocked to find out that this applied to hundreds of people in our district."

The ACLU's Judy Rabinovitz, who is considered the country's pre-eminent legal authority on the problem, says there's no other category of people who can be detained solely because they're considered potentially dangerous. "There are plenty of people on the street right now who are dangers to society," Rabinovitz says from her New York office. "But they're not locked up. The government says that once you're deported, you lose your rights under the Constitution and that there's nothing they can do to change that."

Cohen says it's just a matter of time before the cases get to the judges, who he believes will continue to rule in favor of the lifers. "I think that when that first wave comes, there'll be a steady stream from there on," he says. "The judges are all very sympathetic, regardless of their political outlook. Liberals and conservatives alike are appalled. It strikes them as fundamentally unfair."

And at this point, federal judges appear to be the best hope for lifers whose only other avenue to get out of custody is to appeal to their regional INS supervisors directly. Congress has yet to consider amending the legislation to address the lifer problem.

But Salvator thinks his clients have been waiting long enough, and the INS could be proactive by circumventing the backlogged court system.

As regional director of the INS, Joseph Greene has the authority to release any lifer who he feels is no longer a public threat--but Greene says he has to see evidence of rehabilitation before he makes such a decision.

Lifers like Loi Nguyen insist they can't rehabilitate themselves when they're locked down 23 hours a day with no educational or psychological programs. And how can they prove they can assimilate back into society if they never get a chance to hit the streets after serving their state sentence?

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