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Last month, I represented an African human rights lawyer, with evident scars from his torture, who was prosecuted upon entering the United States for using borrowed documents. After serving six months in jail, he was transferred to Immigration and Naturalization Service custody for an asylum hearing on whether he had a credible fear of being persecuted in his home country (in violation of U.S. law that requires a credible-fear hearing within the first few days of entry). Although my organization has an agreement with the Asylum Office that they will notify us of all arriving asylum seekers, even the Asylum Office did not learn about this man until six months after he arrived here seeking safety. He returned to jail after his credible-fear hearing to wait for his full asylum trial. At the Detention and Removal Office, we met a Muslim woman and her two elementary-age children two days after they were detained at the airport. They were on their way to a “family” jail north of Washington, D.C. Fortunately, a professional acquaintance arrived and offered her own home to the three of them. The detention office changed its plans and released them. We also met a Salvadoran man at his “reasonable fear” hearing after he was illegally detained for five months. He was ready to give up on his rights and consent to deportation, he was so tired of being in jail. My broken Spanish did not convince him to give us a chance to get him released. I called Michelle from our office, a native speaker, who convinced him to give us a week. He was released five days later. JUST ANOTHER DAY One day every week, people from my office and a handful of volunteers meet at Union Station as the sun rises for a long ride to a far-away Virginia jail. The Washington Immigration Office keeps no one in D.C. jails and keeps immigrants in Arlington and Alexandria jails for only short periods because they are too expensive. Rural Virginia jails are cheaper. We are approved to do “Know Your Rights Presentations” at four Virginia jails. Our joke is that with each passing law and regulation and edict, our explanation of people’s rights gets shorter and shorter. Following our presentations, we meet with each immigrant one-on-one to hear their stories. The folks we meet divide into three main groups: asylum seekers, like the people I just described; people with no legal status who had the “bad luck” to be in the wrong place at the wrong time when the government conducted a raid; and people who have completed their criminal convictions (were they U.S. citizens they would be released, but because they are not, they are turned over to the INS for deportation). Our follow-up work falls into several categories: For asylum seekers and people who fear torture if deported, we try to find them pro bono counsel. Many of them we have already begun helping through the credible-fear hearing process. For those who have no right to remain in this country, we actually help them to get deported (strange work for human rights lawyers!) rather than languish in jail. We contact family members and embassies to arrange for travel documents. For people with criminal convictions, our options are very limited. Congress continues to expand the categories of crimes that make even long-term permanent residents with U.S. citizen spouses and children deportable. In rare cases, it is possible to reopen the criminal conviction and change or reduce the sentence. (However, if the criminal judge makes the change only for immigration purposes, it does not “count” for immigration purposes!) In very limited circumstances, it is possible to obtain a “waiver” of the deportation. We also meet a few surprises on our visits. Two people who were about to be deported have recently been released from jail. It turns out they are both U.S. citizens. One citizenship was proved through DNA tests, and another through tenacious research by our law students. Shockingly, we saw — at an adult jail — a sign tacked on an isolation cell: “juvenile.” Who was he, why was he there? A 16-year-old, he had been in jail for nine months without any papers being filed to initiate proceedings against him. His case shows the utter failure of our legal system to properly protect minors and people with mental disabilities and people who fear persecution. Often, people with lawyers win and people without lawyers lose. But in this case, this young person is still in jail even two years after we first met him, despite the intense work of four of the best D.C. law firms. MEETING THE ‘TERRORISTS’ We have met a small number of people in jail on Sept. 11-related charges. Two of them voluntarily came forward with information that they thought might help authorities track down terrorists. Instead of being rewarded, they were jailed on unrelated charges. Both their attempts to help and their subsequent prosecutions and jailings were publicized. Both are at risk of persecution if deported to their home countries. I wonder how this encourages other people to come forward with information. We also hear from detained people about jail conditions. We believe it violates international law to detain an asylum-seeker. A new study by Physicians for Human Rights and the Bellevue/NYU Program for Survivors of Torture confirms that such detention further traumatizes already fragile, wounded people. Being in jail by definition makes it more difficult to obtain medical care, visits from family, and legal representation. Immigration authorities in most parts of the United States use jails in or near major cities. The District is different in that most asylum-seekers are held in Farmville, Va., a four-hour drive (if you stay at the speed limit). Making access to both paid and pro bono counsel even more difficult, the Arlington Immigration Court is one of only a handful in the United States that relies primarily on videoconferencing for asylum merit hearings — despite the fact that the major issue in an asylum case is the credibility of the applicant. Never mind a 4th Circuit opinion that requires an individual balancing test in every case before videoconferencing is used. Imagine two scenarios: An asylum applicant seated next to you and both of you in the same room with the judge so that you can confer confidentially with your client, sign documents, look the judge directly in the eye, hear the translator. Compare that with the tough choice you face if your client is to be heard via videoconferencing: to be with the judge or with the client? And then imagine how credible a person on a small, jumpy, screen looks, wearing an orange jump suit, handcuffed and shackled, with dogs occasionally barking in the background. There is no appeal to a court when Immigration denies a request for release. Sometimes when we go to see clients, they have been moved at the last minute without warning. Their legal papers and medicines sometimes get left behind. Every jail has a different system for legal calls and for visits. Although an application for asylum is supposed to be confidential, we have recently been told that the Department of Homeland Security may actually choose to waive client confidentiality. Many people do not speak English. We are blessed by multilingual volunteers and even jail staff and other detained immigrants. If we lose before the Immigration Court, our appeals to the Board of Immigration Appeals are now much more difficult. This fall the Department of Justice “streamlined” much due process out of the appellate process. In the vast majority of cases, applicants no longer are entitled to three judges who write an opinion. Instead, most cases will go before only one judge who is not required to write an opinion. Unfairly, if an applicant wins asylum before an immigration judge, Immigration can appeal that grant to the BIA. We and the American Immigration Lawyers Association lost a challenge to these regulations in federal court in May. IMMIGRATION’S LEGACY Although I still refer to the Immigration and Naturalization Service, in March of this year much of what was previously called the INS was divided among three agencies at the newly created Department of Homeland Security. The Immigration Court and the BIA remained with the Department of Justice. A strange regulation indicates that the Justice Department nevertheless retains power over immigration. Care for minors moved to the Department of Health and Human Services. For ease of reference people refer to parts of the INS as “legacy INS.” For us, it means we now have to deal with a multitude of agencies to help people we meet in jail. When we began this project three years ago, the Washington INS office had about 100 people in jail at any one time. Numbers have gradually increased until now there are about 500 people in jail. We understand that this number may double next year. Deborah Sanders is executive director of the Capital Area Immigrants’ Rights Coalition in Washington, D.C. Its Web site is www.caircoalition.org, and she can be reached at [email protected].

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