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.1 On October 18, 2001,FBI agents arrested Turkmen at his home, informally accusedhim of being associated with Osama bin Laden a charge hedenied and that was never formally advanced and ordered himto immigration proceedings for overstaying his visa.Turkmenagreed to leave the country, and an immigration judge grantedhim voluntary departure, a form of relief that allows aliens toleave the country without incurring the penalties associated witha final deportation order.Two days later, a friend purchased aplane ticket to Turkey for Turkmen and brought it to the Immi-42 Indefinite Detention of Immigrants Violates the Constitution 43gration and Naturalization Service office in Newark, New Jersey.In ordinary times, Turkmen would have been back in Turkey in amatter of days.But these were not ordinary times, and the INS would not letTurkmen go.He remained in detention for another three and ahalf months, not because the INS faced any problems in effectinghis removal, and not because the government had probable causeto believe that Turkmen had been involved in any criminal activ-ity, but simply because the FBI had not yet cleared Turkmen in itsinvestigation of the terrorist attacks of September 11.On Febru-ary 25, 2002, when the FBI finally cleared Turkmen of any ties toterrorism or the events of September 11, the INS finally allowedhim to leave.Turkmen was not the only person detained unreasonably.Asif-ur-Rehman Saffi, a French citizen and native of Pakistan,was also detained in connection with the September 11 inves-tigation and ordered deported on October 17, 2001.Instead, heremained in INS custody for four and a half months more andwas actually deported only after the FBI had also cleared him.On February 18, 2002, the New York Times reported that, as ofthat date, 87 noncitizens were in the same situation: they hadreceived voluntary departure or final deportation orders, buthad been kept locked up and barred from leaving because theFBI was still investigating them.2Had Turkmen or Saffi been U.S.citizens, there would havebeen no basis for their detention.They were never charged withany crimes and were not shown to pose any danger to the com-munity or potential for flight risk.Moreover, once they were readyand willing to leave the country, there was not even any arguableimmigration purpose for detaining them, as their custody was notnecessary to effectuate their removal.They were held, in essence, for investigation. Yet beyond the narrow confines of the briefstop-and-frisk authorized in Terry v.Ohio, the Constitution pro-vides no justification for investigative detention. 3 As the UnitedStates Supreme Court has recently stated, preventive detention 44 IMMIGRANTS RIGHTS AFTER 9/11is a narrowly carved exception to the general due process rule,which says that people may not be deprived of their liberty absenta criminal conviction.4Due process should limit the government s abilityto detain immigrants.The detention of aliens for months beyond the time necessary tocomplete their removal is just one component of a wide-rangingpreventive detention campaign undertaken by the Departmentof Justice after the attacks of September 11.In this campaign, thegovernment has aggressively used immigration authority to imple-ment a broad strategy of preventive detention where other civil orcriminal law authority would not permit custody.By a conserva-tive estimate, the government has arrested between 1,500 and 2,000people since September 11 in connection with the investigation ofthe terrorist crimes committed that day.5In November 2002, not a single person arrested in the pre-ventive detention campaign had been charged with any involve-The Wilson 4 In June 2002, four undocumented high school students drew the attention of immi-gration officials while attending an academic competition near Buffalo, New York.Three years later, the Wilson 4 (named after the high school they attended), remainin limbo.The students were scheduled for deportation to Mexico.However, immi-gration Judge Richardson threw out the case, ruling that border agents engagedin unlawful racial profiling.The Justice Department has appealed the decision.The Wilson 4 became undocumented aliens when their parents brought them to theUnited States as toddlers, a fate shared by approximately 65,000 other high schoolstudents each year.The pending DREAM Act legislation provides a glimmer ofhope, giving undocumented students who have grown up in the United States andgraduated from high school here a chance to apply for legalization.Source: NPR, The Nation, October 22, 2005. Indefinite Detention of Immigrants Violates the Constitution 45ment in the September 11 attacks.(The only person so charged,Zaccarias Moussawi, was actually arrested before September 11.)Only four detained individuals have been charged with any ter-rorist-related crime.6 The vast majority, like Turkmen and Saffi,have been cleared by the FBI of any involvement in the September11 attacks or any terrorist activity of any kind.Thus, virtually allof the 1,500 to 2,000 people detained in the government s inves-tigation of September 11 have turned out to be innocent of anyinvolvement in terrorism.The majority of the detainees have been held on immigrationcharges, again like Turkmen and Saffi.In some cases, the chargeswere highly technical.One man, Ali Maqtari, a lawful permanentresident alien, was held for a month on the charge that he hadbeen out of lawful status for 10 days while adjusting his statusfrom visitor to permanent resident.It is likely that the INS neverdeported anyone on such a charge; the purpose of his detentionwas not to enforce the immigration laws, but to detain him whilethe FBI interrogated and investigated him for a potential terror-ism connection.When the FBI cleared him, he was released, andhis charges were conditionally dropped pending a showing thathis marriage was genuine. 7Those held on immigration charges have been detained andtried entirely in secret.Their cases are not listed on any publicdocket, and the immigration judges presiding have been instructedto neither confirm nor deny that any particular case exists.Everyaspect of the proceedings, no matter how routine, is closed to thepublic, to the press, and even to family members of the accused.After an immigration regulation issued in October 2001, the INSofficials who prosecuted deportation cases could effectively over-ride immigration judges who ruled that an alien should be releasedon bond while waiting for his deportation proceedings [ Pobierz całość w formacie PDF ]
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.1 On October 18, 2001,FBI agents arrested Turkmen at his home, informally accusedhim of being associated with Osama bin Laden a charge hedenied and that was never formally advanced and ordered himto immigration proceedings for overstaying his visa.Turkmenagreed to leave the country, and an immigration judge grantedhim voluntary departure, a form of relief that allows aliens toleave the country without incurring the penalties associated witha final deportation order.Two days later, a friend purchased aplane ticket to Turkey for Turkmen and brought it to the Immi-42 Indefinite Detention of Immigrants Violates the Constitution 43gration and Naturalization Service office in Newark, New Jersey.In ordinary times, Turkmen would have been back in Turkey in amatter of days.But these were not ordinary times, and the INS would not letTurkmen go.He remained in detention for another three and ahalf months, not because the INS faced any problems in effectinghis removal, and not because the government had probable causeto believe that Turkmen had been involved in any criminal activ-ity, but simply because the FBI had not yet cleared Turkmen in itsinvestigation of the terrorist attacks of September 11.On Febru-ary 25, 2002, when the FBI finally cleared Turkmen of any ties toterrorism or the events of September 11, the INS finally allowedhim to leave.Turkmen was not the only person detained unreasonably.Asif-ur-Rehman Saffi, a French citizen and native of Pakistan,was also detained in connection with the September 11 inves-tigation and ordered deported on October 17, 2001.Instead, heremained in INS custody for four and a half months more andwas actually deported only after the FBI had also cleared him.On February 18, 2002, the New York Times reported that, as ofthat date, 87 noncitizens were in the same situation: they hadreceived voluntary departure or final deportation orders, buthad been kept locked up and barred from leaving because theFBI was still investigating them.2Had Turkmen or Saffi been U.S.citizens, there would havebeen no basis for their detention.They were never charged withany crimes and were not shown to pose any danger to the com-munity or potential for flight risk.Moreover, once they were readyand willing to leave the country, there was not even any arguableimmigration purpose for detaining them, as their custody was notnecessary to effectuate their removal.They were held, in essence, for investigation. Yet beyond the narrow confines of the briefstop-and-frisk authorized in Terry v.Ohio, the Constitution pro-vides no justification for investigative detention. 3 As the UnitedStates Supreme Court has recently stated, preventive detention 44 IMMIGRANTS RIGHTS AFTER 9/11is a narrowly carved exception to the general due process rule,which says that people may not be deprived of their liberty absenta criminal conviction.4Due process should limit the government s abilityto detain immigrants.The detention of aliens for months beyond the time necessary tocomplete their removal is just one component of a wide-rangingpreventive detention campaign undertaken by the Departmentof Justice after the attacks of September 11.In this campaign, thegovernment has aggressively used immigration authority to imple-ment a broad strategy of preventive detention where other civil orcriminal law authority would not permit custody.By a conserva-tive estimate, the government has arrested between 1,500 and 2,000people since September 11 in connection with the investigation ofthe terrorist crimes committed that day.5In November 2002, not a single person arrested in the pre-ventive detention campaign had been charged with any involve-The Wilson 4 In June 2002, four undocumented high school students drew the attention of immi-gration officials while attending an academic competition near Buffalo, New York.Three years later, the Wilson 4 (named after the high school they attended), remainin limbo.The students were scheduled for deportation to Mexico.However, immi-gration Judge Richardson threw out the case, ruling that border agents engagedin unlawful racial profiling.The Justice Department has appealed the decision.The Wilson 4 became undocumented aliens when their parents brought them to theUnited States as toddlers, a fate shared by approximately 65,000 other high schoolstudents each year.The pending DREAM Act legislation provides a glimmer ofhope, giving undocumented students who have grown up in the United States andgraduated from high school here a chance to apply for legalization.Source: NPR, The Nation, October 22, 2005. Indefinite Detention of Immigrants Violates the Constitution 45ment in the September 11 attacks.(The only person so charged,Zaccarias Moussawi, was actually arrested before September 11.)Only four detained individuals have been charged with any ter-rorist-related crime.6 The vast majority, like Turkmen and Saffi,have been cleared by the FBI of any involvement in the September11 attacks or any terrorist activity of any kind.Thus, virtually allof the 1,500 to 2,000 people detained in the government s inves-tigation of September 11 have turned out to be innocent of anyinvolvement in terrorism.The majority of the detainees have been held on immigrationcharges, again like Turkmen and Saffi.In some cases, the chargeswere highly technical.One man, Ali Maqtari, a lawful permanentresident alien, was held for a month on the charge that he hadbeen out of lawful status for 10 days while adjusting his statusfrom visitor to permanent resident.It is likely that the INS neverdeported anyone on such a charge; the purpose of his detentionwas not to enforce the immigration laws, but to detain him whilethe FBI interrogated and investigated him for a potential terror-ism connection.When the FBI cleared him, he was released, andhis charges were conditionally dropped pending a showing thathis marriage was genuine. 7Those held on immigration charges have been detained andtried entirely in secret.Their cases are not listed on any publicdocket, and the immigration judges presiding have been instructedto neither confirm nor deny that any particular case exists.Everyaspect of the proceedings, no matter how routine, is closed to thepublic, to the press, and even to family members of the accused.After an immigration regulation issued in October 2001, the INSofficials who prosecuted deportation cases could effectively over-ride immigration judges who ruled that an alien should be releasedon bond while waiting for his deportation proceedings [ Pobierz całość w formacie PDF ]