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The ACLU Immigrants' Rights Project

Immigrants and Scapegoating

Ira Glasser, ACLU Executive Director
March 27, 1998

Last May, an Albanian woman fleeing her home country landed in a Boston airport without a visa, and was taken to an INS detention facility in New Jersey. She was questioned by INS officials, but was too deeply ashamed to tell her story. When she was brought before an immigration judge, her lawyer was barred from participating in the hearing. Distraught and weeping, the woman finally and reluctantly told the judge her story -- how she was gang raped by masked, armed men in retaliation for her husband's refusal to fight for the Albanian government. The judge decided that her testimony was implausible, and ordered her immediately deported.

Up until last year, the woman would have had the right to appeal this devastating decision in federal court. But in 1996, Congress took that right away when it passed the Immigration Reform and Immigrant Responsibility Act, giving INS officials unilateral and unreviewable authority to summarily deport foreign nationals. This "expedited removal" policy, which took effect one year ago on April 1, was directed specifically at refugees suspected of using the appeals process to delay deportation. But, in practice, the law has given the government wide latitude to turn away anyone deemed by INS officials to be trying to stay in the U.S. illegally -- including people who have lived and worked in this country for many years. The Act effectively granted the federal government the unfettered license to act as police, prosecutor, judge and jury, and to determine guilt or innocence at the scene of a crime, rather than after a careful investigation and trial.

INS inspectors examine some five million people a year, making on-the- spot subjective judgments as to the validity of their claims. In the first six months that the Immigration Reform Act was in effect, INS inspectors ordered more than 31,000 people removed under the new policy -- more than 1,000 a week. In many cases, those who are removed do not speak English and have no idea how to exercise their due process rights. Others are too traumatized to describe the persecution and torture they have suffered. Oppressive governments are not likely to provide proper documents to those fleeting their territory, and those who don't know what asylum is or how to ask for it are simply sent back. They are not informed of the right to counsel, offered a phone call, or provided with access to qualified interpreters. Those who know enough to demand their rights may get a hearing before an immigration judge, but lawyers, family and friends may be barred from participation. And whatever decision the INS makes is now final, and deportation may be immediate. The result, needless to say, is that countless people who have a credible fear of persecution in their home country, or have some other legitimate right to be in the U.S., are being turned away at our borders -- often after a humiliating ordeal in INS detention.

The same year that the Immigration Act was enacted, Congress also passed the Anti-Terrorism and Effective Death Penalty Act containing a provision which together with the Immigration Act allows legal residents of the United States -- even those who have lived here for decades -- to be summarily deported without judicial review if they have any minor criminal record. In other words, if someone twice jumped a subway turnstile 30 years ago, and has lived here legally and uneventfully since, they still face automatic expulsion. Where courts used to be allowed to grant waivers on humanitarian grounds, the new provision eliminates all such waivers. The new laws also require mandatory detention.

Consider what this means to someone like Jesus Collado, a Brooklynite who was convicted of contributing to the delinquency of a minor for sleeping with his under-age teen girlfriend when he was also a teenager, and put on probation. In the 23 years since, Mr. Collado has led a respectable life. He has a U.S. citizen wife and three U.S. citizen children. Now he faces deportation to a country that is no longer his home, while the Attorney General argues that he has no right even to challenge this ruling in court!

Clearly, this legislation has the most immediate impact on the hundreds of thousands of legal residents living in this country, and the refugees, business people and visitors who attempt to enter the U.S. But, on a much broader scale, these provisions have the potential to establish a grave precedent which would have dire consequences for every person in this country.

By trying to insulate such immigration decisions from being reversed, these laws deny fundamental rights without any court review, and upset the balance of powers so critical to our constitutional form of government. The judicial system exists precisely to protect individual rights from the tyranny of the government. Without this protection, there are no effective limits on what the government can do. Taking away the courts' power to enforce our rights is tantamount to taking away the rights themselves.

The ACLU Immigrants' Rights Project is leading the fight against these provisions in a multifaceted campaign, against a Justice Department that is pouring tremendous resources into their defense.

Initially, we were unable to identify individual plaintiffs to challenge the expedited removal policy because, quite simply, every potential plaintiff was being removed before there was an opportunity to identify them. So, instead, we filed suit on behalf of several advocacy groups who represent the rights of immigrants. The government then attempted to derail our suit on technical grounds, saying that these lawsuits could not go forward without individuals!

Gradually, we were able to locate individual plaintiffs: one is the Albanian woman. Another is Elba Digna Wood, the wife of an ex-Nicaraguan contra commander who arrived with her 2-year-old daughter in a Miami airport with a valid visitor's visa. She was detained for 33 hours at the Miami airport, often without translation, food or bathroom privileges, and then locked up at an INS Detention Center for eight days . Her daughter was also held until Wood was a le to contact the child's grandmother to care for her. Ultimately, mother and daughter were deported to M nagua in what the INS later admitted was a "complete mistake."

But as soon as we added these individuals, the government claimed another technicality that they were brought into the suit too late. The Attorney General has now asked the court to dismiss the case on both grounds. Our response, of course, is that the very procedures we are challenging made it impossible to locate individual plaintiffs immediately and that if the government had its way, these procedures would never be reviewed. We are now awaiting a decision on the government's motion, which will determine our next step.

Meanwhile, we continued to advocate for the rights of the Albanian woman, who was in hiding since her return, cut off from her village and family: in her tradition, she is perceived as having lost her honor because of the rape, and she is terrified of retribution by her attackers. We obtained the assistance of a women's counseling project in Albania which provided her with support through this difficult period. With the further assistance from women's human rights organizations in the U.S., we were finally able to persuade the INS to allow her to return to the U.S. to seek asylum.

We have also continued to identify additional plaintiffs who have been victims of seemingly arbitrary decisions made by INS officials. Canadian Steven Williamson is one such individual. He was stopped for no apparent reason at the border in Detroit and ordered to sign an affidavit saying that he planned to enter the country under false pretenses. When he refused and asked to talk to a lawyer, he was verbally threatened by a guard with his hand on his gun. Ultimately he bowed to the pressure, and signed the patently untrue statement. Like most such denials of entry, Williamson's was accompanied by an order barring him from the United States for five years; other people have been excluded for life. And again, under the terms of the Immigration Act, none of these rulings are subject to court review.

While the specific issues relating to judicial review of deportation orders against legal U.S. residents are somewhat more technical, they actually pose an even greater, more direct threat to individual rights. The government has adopted the harshest possible interpretation of this legislation, declaring that Congress intended it to be applied retroactively. This means that even waivers of deportation that were granted on humanitarian grounds before the law took effect are now being rescinded. But what is even more alarming is the government's assertion that no one has the authority to challenge this interpretation, that the courts simply do not have jurisdiction in this matter. This is a stunning and unprecedented position. By investing the Justice Department with absolute authority and denying the courts any oversight, the government is challenging the bedrock constitutional principle that it is the explicit role of the judicial system to interpret the law, and to enforce rights that the government wishes to deny.

The ACLU Immigrants' Rights Project has made this provision of the law a primary focus. The Project has designed and implemented a national strategy for challenging both the specifics of the law, and the government's interpretation of it. We are litigating cases in nearly every federal court of appeals in the nation and numerous district courts. In addition, the Project has submitted countless briefs in other cases and provided support, advice and draft pleadings to more than 100 lawyers throughout the country. Currently, Project staff fields some 15 to 25 calls every week from lawyers seeking help on judicial review issues.

Already, we have achieved significant victories on the district court level. The most comprehensive came in the case of Mojica v. Reno, in which the judge issued a 100-page opinion flatly rejecting the government's contention that Congress has taken away the courts' jurisdiction to hear immigrants' claims. That case is one of three that the Project has already argued in federal appeals courts, and a decision is expected in one of them any day. One way or another, we fully expect this issue to end up in the Supreme Court within the next year.

The Immigration and Anti-Terrorism laws are part of a larger hostility to individual rights and to the power of the judiciary to enforce rights, a pervasive attitude that is also manifesting itself in attacks on individual judges, on the role of the Supreme Court and on the principle of judicial review itself. The ACLU has issued a special report about this dangerous trend, and we are actively working on every front to protect the integrity of our judicial system. We thank you, as always, for your ongoing support of this crucial work.