Waiting to Exile
In December, when the U.S. launched air strikes against Iraq, Loi Nguyen heard a rumor spreading through the Wackenhut center for Immigration and Naturalization Service detainees in Aurora. The rumor was that if the conflict escalated into a full-fledged world war, the U.S. government was going to come in and execute all the non-deportable inmates like him.
Since the summer of 1997, Nguyen has been held at Wackenhut awaiting "travel documents" that will send him back to Vietnam, where he was born. He has no idea when, or if, those documents will ever arrive. Nguyen once held permanent alien status in the U.S., but that was before he led Jeffco police on a high-speed chase while driving the getaway car after a restaurant robbery. He was fifteen years old at the time but was charged as an adult.
Under two laws passed by Congress in 1996, green-card holders who commit a crime categorized as an aggravated felony--money laundering, DUI, prostitution, gambling-related offenses, murder and robbery are just a few of the crimes that fit the two-page INS definition of such an offense--will have their resident status immediately revoked. After they've served their time in state or federal correctional systems, they must be deported.
But convicted felons like Nguyen, who come from Vietnam--or a host of other countries like Cambodia, Sudan or China--can't go back to their native lands. The governments of those countries flat-out refuse to take back criminals. At first Nguyen was relieved that the INS couldn't follow through on its order to deport him. After all, he's been in the U.S. since he was four years old. His entire family lives in the States, and he doesn't know much more about Vietnam than any other 23-year-old American kid.
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Following his conviction for aggravated robbery and vehicular eluding, Nguyen did his time, serving out his sentence with an exemplary record. But a year and a half later he's still in jail, because the INS won't turn him loose.
Twenty-nine other inmates at Wackenhut share Nguyen's predicament. They call themselves "lifers," since for all they know, they'll never get out. Nguyen says he heard about one guy from Cuba who's been locked up for thirty years.
"I never knew what a citizen was until this thing came up," says Nguyen in an accent that has traces of both California and Texas. "I thought I was a U.S. citizen and that after I served my time in the [Department of Corrections], I'd be set free. But the day I was supposed to be released early for good behavior, the INS showed up, brought me here and told me that as soon as Vietnam allowed people to go back, I'd be on the first plane over there. A year and half later, I'm still waiting."
Even though a federal judge ruled on December 14 that INS detainees awaiting deportation can post bond and get out of places like Wackenhut, any fight they get into or infraction they commit counts against them when it comes time for their bond hearing. Nguyen didn't get into any trouble during the five years he was in the DOC system. "That young lad was a good prisoner," says his former warden, Al Bennett. "He did what he was told, earned his GED and smiled a lot." The problem, according to Nguyen, is that lifers can't avoid problems in the INS detention center.
Nguyen and his fellow detainees are locked down 23 hours a day. There are no windows in the minimum-security, warehouse-like facility. Large dorm rooms with bunks are each packed with 25 inmates. They play cards, watch TV and sleep as much as possible. Since the Wackenhut facility was designed as a temporary detention center--Mexicans, for example, are in there for only a couple of weeks before they're sent home--it offers no educational or rehabilitative programs. Because of the close quarters, fights break out, usually between the "short-timers" and the lifers who are thrown together in the large cells.
"You got people coming and going," says the slightly built Nguyen, "and those guys who are in here for a short time know it and don't care about starting problems. Only us lifers have anything to lose. And you can't walk away from trouble when you're locked in this dorm all day. My first fight was a racial thing. Mexicans against non-Mexicans."
His other violation was for having a tattoo kit, which he used to inscribe "lifer" on his arm. Because of these violations, Nguyen was denied bond.
"I'm frustrated," says Nguyen. "It ain't easy going through DOC clean like I did. As far as Colorado is concerned, I did my time. But now I'm doing the INS's time. All of us lifers are fighting a no-win war. This is worse than hell on earth. Here we've got no chance. I'd almost rather die, because all they're doing in here is killing me slowly. I wouldn't call this living."
In 1996--an election year--the United States was reeling from the Oklahoma City and World Trade Center bombings, and political candidates easily exploited Americans' newfound fear that the most immediate threat was no longer a Soviet nuclear warhead but the unpredictable actions of terrorists. Bill Clinton talked about his anti-crime "three strikes" legislation, while Pat Buchanan proposed building a fence along the U.S.- Mexico border to turn back the waves of illegal immigrants. In January the INS broadcast a television signal into Mexico warning illegal aliens not to try to return to the U.S. after visiting relatives over the holidays. In New York, Mayor Rudy Giuliani threatened to cut off city funding for several groups that provided services to immigrants. In California, Governor Pete Wilson sued the federal government for failing to reimburse that state for the cost of incarcerating illegal aliens convicted of felonies. Attorney General Janet Reno warned Congress that President Clinton would veto any immigration bill that authorized visas for temporary farm workers. Republican Bob Dole endorsed a measure that would allow states to close public schools to children of illegal immigrants.
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.
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.
"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?
"Look," says Greene. "Someone who's done hard time isn't going to be someone I'll look at as being a good risk. They're different from someone who did their crime ten years ago and has been out and part of the community. Unfortunately, since the laws passed in '96 don't give them that chance, the only evidence I can look at when deciding whether to release them or not is the disciplinary records at Wackenhut. If you've been in Wackenhut for a year and were a troublemaker, what does that say?
"I realize jail isn't fun, but if you don't have self-control of your violent or argumentative behavior in a controlled environment like Wackenhut, why should I think you'll be okay on the outside? I don't want to make a mistake with a guy and have Westword coming back to me asking why I let a guy loose who went out and killed somebody."
Greene also points out that the INS's mission isn't to rehabilitate criminal aliens. His job is to send them home. Although the INS has been considering bringing in volunteers to help lifers demonstrate rehabilitation, that's still a ways down the line. The idea is that INS detainees who are non-deportable could have access to the same educational programs they had while locked up in the state correctional system, so the INS would have hard evidence of a lifer's attempt at rehabilitation when it came time for a bond review hearing.
But Greene says that in the battle between due process and safe streets, Congress has ordered the INS to err on the side of public safety. Of the 29 lifers held in the Wackenhut detention facility since 1996, only two have been released.
"I think Joe Greene is a good man," says Salvator, "but he needs to start using his discretion as regional director to get some of these guys out of the detention centers. But maybe the INS, as an agency, has decided to dig in its heels and fight this. I don't think Joe Greene is being frank when he says this is what Congress wants. Congress doesn't want constitutional violations like these."
The Saigon Restaurant is sandwiched between a closed-down Mexican dance club and a storefront that simply reads "Medical Center." A couple of skate rats use the strip mall's sidewalk to practice their kick flips. The owner of the restaurant, 29-year-old Linda Nguyen, is Loi's aunt. As the lunch crowd drifts out of the restaurant, she talks about how her nephew got into trouble seven years ago and how, $12,000 in lawyers' fees later, he's still being held with no release date in sight. At this point, she says, the Nguyen family would just as soon see Loi sent back to Vietnam--anywhere but where he's locked up now.
"He was just a little kid when he got arrested," says Nguyen, "but now he knows better. The family, especially his grandmother, can't understand why Loi did his time in jail but they decided to keep him anyway. Loi is the oldest boy in the family, and because of that, the family has been upside down since he got arrested. It's like our house is burning. Worrying about Loi gives me a headache. So all I do is work and try not to think about it. But even when everything is happy, the little kids are playing and laughing, Loi will call, and it brings us all back to reality, which is that there's nothing we can do. It's gotten to the point where I get scared every time the phone rings."
The fact that Nguyen's family lives in Denver and is prepared to take custody of him to ensure that he doesn't get into trouble while awaiting deportation didn't convince the INS to grant him bond. When rejecting his plea for bail, INS deputy director Michael Comfort wrote: "It must be remembered that the 1992 decision to commit the crime he committed was during a time when he was under the authority of his aunt. As to the flight risk, Mr. Nguyen is now aware of the sobering fact that he will be returned to Vietnam as soon as a travel document can be secured from that country. No one in the family wants to see that happen. I am not convinced that once a travel document can be obtained, Mr. Nguyen will present himself for deportation."
Linda Nguyen says Loi has spent enough of his life locked up and deserves a chance to prove he belongs out in the world.
"The worst part about it is that Loi's missed so much of life," she says. "He's a man now, but he doesn't understand how the world has changed. The other day he called and asked me to send a letter to his lawyer, and I said I'd fax it over. Loi had no idea what a fax was.
"You know how some people say the world is going to end in the year 2000? Well, I talked to Loi about that, and he said, 'Auntie, I wish I could just be out one day and then the world can end.'"
The Wackenhut detention center is ringed with barbed wire. Guards at the compound keep the lifers as separated from each other as possible. But during their daily hour in the exercise yard, they get to commiserate and talk about what one of them describes as "this hell of waiting."
Meseret Wassie, 23, has been in the INS center for a year and seven months waiting to get deported to Sudan. Duy Dac Ho, 29, from Vietnam, has been locked in Wackenhut for three years. "Tay" Saynourath, a lanky 23-year-old Laotian, has been held for twenty months; 29-year-old Chheath Pril, originally from Cambodia, has now spent three Christmases in Wackenhut. Their crimes ranged from burglary and menacing to possession of concealed weapons--but they all served out their sentences. Thien Van Vo, 23, never went to jail but was given probation for a sex assault; the INS picked him up one day while he was walking down the street.
Of the six, only Saynourath says he still has hopes of ever getting out.
Loi Nguyen and these five other lifers say they've written to every country in the world trying to find someplace, anyplace, that will take them. Only Denmark, Sweden and Belize have sent responses. All three countries said they couldn't offer any help unless the men had a sponsor or family in that country. "Like I know anybody in Sweden," Chheath Pril says with a slight smile.
"Shit, man, we'd all pay for our own tickets up outta here," says Duy Dac Ho. "After three years in here, I don't even want to be in this country anymore. When I first got here, they said I'd be here for two or three weeks. That was three years ago. Three years of their time. And then they won't give us bonds because we get into some scuffles. I'm telling you, people like us try to be quiet. The other guys, no disrespect intended, but the Mexicans mostly, they come and go in two weeks, and they act like this is some sort of field trip. They know they're on their way home. So if there's trouble, it comes down on us."
The lifers say the biggest problem with the "short-timers" is that they don't respect the fact that for the lifers, this isn't a temporary holding tank. This is their home. And when the short-timers don't help keep the place clean--refuse to flush the toilets, for instance--it makes things even worse for the lifers.
"And the guards ignore us," Ho says as the other lifers nod their agreement. "They act like we're caged monkeys. And we can't get any answers. I don't think any of us has even talked to an INS person since we've been in here. You send a kite [letter] out, and the only thing you hear back is that they received it or that they're trying to arrange a travel document. Man, we got nothing coming. Have you ever seen a herd of cows? That's us in our orange suits. We're orange cows. They feed us, exercise us once in a while and brand us."
Meseret Wassie says the worst part about their situation is the fact that all of them committed their crimes before the 1996 anti-terrorism and aggravated-felon legislation. "There are badder guys than us walking around outside right now," says Wassie. "Murderers, rapists. And what about this anti-terrorism stuff? We aren't terrorists. We just did common criminal stuff. The guy who blew up Oklahoma City was an American."
Which brings up the unkindest cut of all. Every day the lifers see people with no green cards and no connection to the United States come and go back to the countries where they were born, while they rot away in their holding cells. These lifers all spent most of their lives in the U.S. before they were arrested. They consider themselves citizens. They paid taxes. Tay Saynourath sums it up: "Everything we learned was from American society. But the INS considers us the problem of America. We're not perfect. But the INS can't keep us here forever because of that."
Chheath Pril says they've all learned their lessons and have spread the word back to their brothers and sisters: If you weren't born in the U.S., don't commit a crime.
"After this," says Pril, "none of us would even drive a car without a license. I wouldn't even go out to a club or party like I did before. I'd just work and stay home. This has scared all of us straight."
Pril pauses for a moment to hitch up his orange pants, which are so big that his lower body seems lost inside them.
"I feel like I don't even exist anymore," he says. "And I try to convince my brothers and sisters to tell that to my mom so it'll be easier for her.
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