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The number of Muslim men jailed on minor immigration charges across the country since Sept. 11 declined to about 450 last week, according to U.S. Attorney General John Ashcroft, down from the high of 548 he reported in November. However, numbers obtained from New Jersey jail officials and estimates from defense lawyers suggest that the total population of Muslim men detained may be closer to 600. Since the attacks on the World Trade Center and the Pentagon, the FBI and the Immigration and Naturalization Service have arrested hundreds of southern Asian and Arab men in their investigation of the attacks. The 450 reportedly held as of last week have not been criminally charged, but have been kept in various jails — primarily in New Jersey and Florida — because their immigration status lapsed. Many had arrived on tourist, student or work visas and failed to reapply or to alter or renew their status before agents found them. Undersheriff Felix Garcia says 346 are held at the Passaic County Jail in Paterson, N.J. An additional 52 are being held at the Krome Detention Center in Miami, according to a Dec. 26 article in The Sun-Sentinel of Fort Lauderdale, Fla. Krome officials decline to comment. The only other facility holding “special case” Sept. 11 detainees on INS charges is the Hudson County Jail in Kearny, N.J., but attorneys who represent such detainees there say they number about 200. That would bring the total near 600. Officials at the jail and the INS decline to comment. Dan Nelson, a spokesman for the Justice Department, declines to comment beyond supplying the total number of detainees. Attorneys representing detainees started raising doubts about Ashcroft’s numbers before Christmas. At a “detention forum” discussion hosted by the Asian American Legal Defense and Education Fund in Manhattan, New York solo practitioners Martin Stolar and Claudia Slovinsky stated that they thought the detainees were being undercounted. Stolar said he thought there might be as many as 520 men inside the Passaic jail alone. Slovinsky speculated that Ashcroft was dropping cases from the list as men are deported or released from the jails. Estimates from other attorneys with clients at the Hudson and Passaic jails suggest they could be right. Clifton, N.J., solo Sohail Mohammed says he saw four groups of 50 to 60 detainees in Hudson when he visited three weeks ago on a tour with the Egyptian ambassador and the vice counsel. That’s about 200 in total. Newark, N.J., solo practitioner Regis Fernandez also estimates that last week there were about 200 cases in the Hudson jail. Mac Scott of the Coalition for Human Rights of Immigrants, whose staffers visit detainees as friends, and Robert Frank of Frank & York in Newark concur that 200 would be a reasonable estimate of the number in the Hudson jail. “There’s a large number of detainees that are coming in every single day to the court,” Frank says. “There are definitely hundreds, because they’ll bring in 20 or 40 people a day.” The notion that there may be hundreds rather than dozens of detainees in the Hudson jail was bolstered last week by the news that the INS has added a third New Jersey jail to its list of facilities holding special-case detainees. Mohammed and Frank both found, to their surprise, that clients they thought were in Hudson had been residing since Wednesday in the Middlesex County Jail in New Brunswick, N.J. The move angers Mohammed because it makes it more difficult for him to communicate with his clients. Frank speculates that those detainees with court dates were likely to remain in Hudson, near Newark’s immigration courts, while those men who were not going to be released soon were housed in Middlesex. Mohammed notes that the move frees up space inside Hudson. “It could mean they’re anticipating a new dragnet,” he says. Middlesex Warden Michael Abode did not return a call seeking comment. Federal authorities have divided up the men they have arrested in the post-Sept. 11 investigation by the seriousness of their crimes. About 10 material witnesses are being detained inside the Wackenhut Detention Center in Rockaway, N.Y. About 60 more men are being held in Brooklyn’s Metropolitan Detention Center; those men have actually been charged with crimes, and security at MDC is concomitantly higher than at Wackenhut. The men who appear to have been judged unlikely to be involved with terrorist activity — those whose only malfeasance is related to their immigration status — have been moved to New Jersey. Indeed, the Newark courts seem to be a staging post of sorts in the government’s efforts to remove Muslim men whose legal immigration status has lapsed. Muslims from all over the country have been shipped to the Hudson and Passaic jails before they are processed. Miko Tokuhama, an attorney for the Legal Aid Society of San Diego Inc. and president of the California American Immigration Lawyers Association, says all local Muslims arrested after Sept. 11 have been flown to New Jersey and that, as far as she knew, no men remained at the INS facilities in that city. An INS official in San Diego, which has a sizable Arab community, confirmed anonymously that no special cases were being held there. The secrecy surrounding the detentions makes assessment of the numbers difficult. If one assumes that the Justice Department’s list is redacted once the men are released or deported or their cases are otherwise adjudicated, it is possible, albeit unlikely, that the current 450 number is accurate. Nonetheless, if that were so it would still mean that hundreds more men have been detained than the total given by the department. Ashcroft has faced considerable criticism for the mass detentions and his program of using FBI agents to question an additional 5,000 Arab men about their affiliations and opinions on terrorism. The American Civil Liberties Union has filed a Freedom of Information Act suit in federal court in Washington, D.C., in an attempt to force Ashcroft to identify all the detainees, who are being held in anonymity. Major newspapers have railed against him in editorials. The New York Times, for instance, stated Dec. 21 that Ashcroft’s investigation contained “dubious departures from American principles.” In a separate but related development, the 9th U.S. Circuit Court of Appeals last Wednesday granted a lawful alien’s habeas corpus writ, finding that the INS did not have the authority to detain him indefinitely. Hyung Joon Kim, a lawful resident alien, had been convicted of first-degree burglary in California. After he served a three-year prison term, the INS sought to detain him until it processed him through its deportation proceedings for criminal aliens under � 236(c) of the Immigration and Nationality Act, 8 U.S.C. 1226(c). The ruling, in Hyung Joon Kim v. John Ziglar and John Ashcroft, 2002 U.S. App. LEXIS 277, brings the 9th Circuit into line with the 3rd Circuit, which restricted the activities of the INS’ powers of detention in Patel v. Zemski, 2001 U.S. Dist. LEXIS 6124. Kim and Patel reflect three recent Supreme Court cases, appealed from the 2nd, 5th and 9th Circuits, all of which upheld the rights of aliens detained by the INS, and enforced various due process provisions. The consolidated cases are Zadvydas v. Davis, Ashcroft v. Ma and INS v. St. Cyr. The next case to test that Supreme Court doctrine will likely be Mazen Al Najjar v. Ashcroft, No. 99-3458-CIV-Lenard, in the Southern District of Florida. Al Najjar was detained in 1999 and then released in a deportation effort because the government, using secret evidence, contended that he was a supporter of Palestinian Islamic jihad, and that he had overstayed his visa. He was re-arrested and detained in November because the INS believed he was a flight risk, but his lawyers say that isn’t so, considering his need to care for his three American daughters and his lawful behavior to date. Further, since no country has agreed to accept him, he will face the sort of indefinite detention that has recently been declared unconstitutional. Al Najjar awaits the government’s response to his petition for habeas corpus.

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