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The General Accounting Office, the investigative arm of Congress, is probing the New Jersey branch of the Immigration and Naturalization Service to find out why Muslims arrested after Sept. 11, 2001, remain in local jails, often for months, after being ordered deported. In recent weeks, GAO investigators have been interviewing New Jersey attorneys specifically about the treatment of “special interest” detainees awaiting deportation in northern New Jersey jails. Richard Stana, director for justice issues at the GAO, confirms the probe, which is part of a more general focus on how the Bush administration’s post-Sept. 11 measures are impacting civil liberties. “They have a very broad scope for their investigation,” says Amy Gottlieb, program director at the American Friends Service Committee, who was present at a Sept. 25 meeting with GAO attorneys. “They asked about people with final orders [of removal], cooperation with the police, how people were being picked up, and access to attorneys,” she says. The reasons for deportation delays are a matter of contention between the immigration bar and the INS, and the former is hoping the GAO will shed some light on the latter. The GAO’s probe is the second to focus on treatment of Sept. 11 detainees in the jails of Hudson, Passaic and Middlesex counties, N.J. Earlier this year, representatives of the Office of the Inspector General, an independent unit of the U.S. Department of Justice, visited the jails. Both sets of investigators have been trying to speak to immigration lawyers, civil rights groups and officials from the local INS and the jails, according to Robert Frank of Frank & York in Newark, N.J. One of their specific areas of concern is “people being ordered deported but still being detained,” Frank says. In March, at the six-month anniversary of the attacks on the World Trade Center and the Pentagon, the New Jersey Law Journal surveyed the cases of 85 special-interest detainees and found that 12 appeared to have been held beyond the 90 days within which the INS must remove an alien ordered deported. Since March, there have been at least four more cases in which an attorney believed a client’s detention had no foreseeable end. The number of special interest detainees dwindled to 35 as of Sept. 23, according to an immigration official in Washington, D.C. The total number detained on immigration charges as a result of the Sept. 11 investigation is 763, the DOJ says. What proportion of that total consists of men who have been ordered deported but remained in jail beyond the statutory period is unknown. The International Human Rights Law Group in Washington, D.C., estimates that “dozens” of them are men who had deportation orders that were ignored, according to Thomas Lynch, program associate for special projects. “But it’s impossible to nail down,” he says. The imprisonment is often prolonged, Lynch says, because the Federal Bureau of Investigation has not issued its “clearance letter,” a statement that the government’s investigation of the detainee for terrorist information has been completed. An INS official in Washington, D.C., who agreed to comment anonymously, denied that large numbers of detainees were denied their rights. “The government is not acting without checks and balances,” the official says. “This discretionary authority of the government is subject to judicial review both at the administrative and at the judicial level, in the federal court system.” It is not known how many of the detainees held beyond the 90-day deportation period have sought habeas corpus relief. In May, Chief U.S. District Judge John Bissell of the District of New Jersey predicted there would be an increase in the number of habeas filings due to the Sept. 11 detentions. Bissell did not return a call at press time enquiring whether his prediction had come true. The clerk’s office does not track its caseload in enough detail to be able to say whether an increase has occurred, and its statistics for this year are not published for another month or so. Last year, prior to Sept. 11, only 59 habeas petitions of all kinds were filed in New Jersey’s federal court, according to the Administrative Office of the U.S. Courts. Since Sept. 11, 2001, attorneys have told the Law Journal of filing at least 13 habeas motions for special interest clients. One of those clients, Abu Shaker, has filed twice. Shaker, a Palestinian who has been in jail in New Jersey for more than a year although ordered deported, has petitioned U.S. District Judge John Lifland of the District of New Jersey for relief, but unsuccessfully. His lawyer is Regis Fernandez, a Newark solo practitioner. The INS has twice demonstrated in Shaker’s case that it believes it can deport Shaker, saying it simply needs more time to persuade Israeli authorities to take him. Each time his habeas was filed it stopped the clock on the period within which the INS must remove Shaker, Lifland ruled. Other detainees, says Lynch, may be fearful that if they file a petition of relief, the local U.S. Attorney’s Office will answer by filing criminal charges — for example, for lying to an immigration officer at some point in their interrogation. A criminal conviction, Lynch says, may lead to harsh treatment in their home countries, such as Saudi Arabia. It is not clear whether the notion that federal authorities retaliate with charges against habeas filers is myth or truth. A spokesman for the Department of Justice, Jorge Martinez, said he did not know the number of habeas motions produced by detainees. “INS should be moving to deport these individuals who have their final orders but each case is different — it relates to the country where they’re going, the travel documents, etc.,” he says. Martinez denies that the DOJ holds criminal charges in abeyance pending habeas filings, but adds, “If someone considers these charges as minor violations I would kindly disagree. They are violations, period. They are against the law and individuals who violate the law will be prosecuted accordingly.” Bissell, in his May speech, predicted that a further 100 pending criminal complaints would likely add to the indictment pile created by Sept. 11 investigators, but he did not detail what he thought might trigger those cases. Certainly, many attorneys have a fear of filing. The fear appears to stem largely from a widely reported case, that of Shakir Baloch, a Canadian deported in April. Baloch had been held for seven months following Sept. 11. When his lawyers — New York solo practitioner Martin Stolar and Joel Kupferman, a cooperating attorney with the Center for Constitutional Rights, also in New York — brought a habeas motion, Baloch was immediately charged with entering the United States illegally. The fear has divided attorneys. Paterson, N.J., solo practitioner Aslan Soobzokov has filed at least three habeas motions because he believes it pushes the INS to swiftly deport his clients. But Clifton, N.J., solo practitioner Sohail Mohammed, like Newark’s Hamdi Rifai of Rifai & Associates, says he never files. “They could bring up some criminal charges,” Mohammed says. “So my clients didn’t want it.” The INS denies that detainees are retaliated against, according to the Washington official, who asked not to be identified. “A person who has a final order of removal but who is also implicated in an ongoing criminal investigation, would even prior to Sept. 11 remain in INS custody as long as that criminal investigation were ongoing,” the official says. “It would not be in the best interests of the public or of justice to remove from the U.S., and from government scrutiny and government control, the individual who is under investigation for terrorism.” As for the fear of retaliation, “It’s a fundamentally weak argument to say, ‘Well, we’re not going to exercise our right to request judicial review of the government’s decision to keep these individuals in custody given the fact that our client is susceptible to being indicted criminally,’” the official says. In addition, the official says, the consequences of minor charges are unlikely to affect their detention. “Uttering a false statement to a government official does not in and of itself carry such weight that it would preclude an individual from being bonded on such a charge.” Whether the FBI has the ability to prevent a deportation by withholding a clearance letter is an untested matter. “To me, the fact that they’re entitled to a habeas doesn’t absolve the government of its obligation not to hold people illegally, particularly if it’s not in isolated cases,” says J.C. Salyer, a staff attorney for the American Civil Liberties Union of New Jersey who has also been interviewed by the GAO. “Hopefully the GAO will be in a better position to find out the numbers than we have been.” On Sept. 26, Lynch’s group prevailed upon the Inter-American Commission on Human Rights — part of the Organization of American States, to which the United States is a signatory — to demand that the Department of Justice take “precautionary measures” to ensure that the rights of the detainees are being upheld. “The commission considers that a situation of potential irreparable harm has been demonstrated,” wrote the commission’s executive secretariat. “An undisclosed number of foreign nationals who have been granted the right to voluntarily depart the United States or have been ordered deported by an immigration judge but have remained in detention beyond the timeframes under U.S. law within which the INS is required to effectuate their removal … There is no basis under domestic or international law for the detainees’ continued detentions.” The commission’s findings are advisory and Lynch expects they will be ignored by the federal government.

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