Northern Closure

BUFFALO, NEW YORK—It’s a familiar routine. At 3 p.m. on a thick August afternoon, Jonathan Croom drives his cab up in front of an old brick building on the dilapidated east side of town and waits for his customers—this time, a family from Sudan. Croom, 52, once earned his living in the local steel industry, but when the plants closed down—dragging Buffalo’s economy with them—he cast about for a few years before finding his groove as a taxi driver. Now his ’96 Ford Crown Victoria is his vehicle to survival in what he calls the “day-in, day-out struggle of trying to make a living in this depressed town.” For his passengers—who climb aboard for the last leg of a journey that may have begun as far away as Burundi, Sri Lanka, or Colombia—Croom’s car is a chariot to freedom.

Every year, some 15,000 refugees arrive in the U.S. and keep going toward Canada, where they hope to start new lives. (Only about 200 each year come through Canada to seek asylum in the U.S.) Croom drives many of them across the border to prearranged appointments with Canada’s immigration service, thus playing a crucial role in a little-known, orderly system that enables people fleeing persecution to request safe harbor.

But that steady traffic rankles officials in Canada, where the number of refugee claims has doubled in the last three years. Canada’s leaders have long been trying to stem the tide by getting the U.S. to agree that asylum seekers should ask for protection in the land where they first set foot—the “safe third country” between the nation of origin and the desired refuge. Overwhelmed by its own backlog of asylum cases, the U.S. has refused. But now the U.S. is about to grant the favor as part of the 30-point “Smart Border” security plan being hammered out between Washington and Ottawa. American officials acknowledge that the safe-third-country accord—likely to be signed within a few weeks—does not enhance anti-terrorism efforts, but is simply part of the package deal. In other words, says Eleanor Acer of the Lawyers Committee for Human Rights, the U.S. “is sacrificing the interests of refugees as some kind of bargaining chip.”

According to Acer and other advocates, a similar safe-third-country arrangement in the European Union has been disastrous, bouncing would-be refugees from country to country so relentlessly that the situation has come to be described as “refugee soccer.” Meanwhile, hundreds of migrants die each year trying to reach the U.S. from Mexico, and advocates warn that the death toll could begin to rise along the northern border as well, as refugees hell-bent on Canada risk dangerous illegal crossings.

Anti-immigrant groups have slammed the agreement, too—though not out of humanitarian concerns for refugees. The Federation for American Immigration Reform charges hysterically that the new rule will “compound security risks” by flooding the U.S. with additional asylum applicants and that “terrorists would be certain to take advantage of a system that is unable to cope with a growing caseload.”

For his part, after chatting with scores of migrants in his taxi over the last couple of years, Croom believes the pending change just “doesn’t make a lot of sense.” He adds, “These people have connections in Canada and other reasons to go there. Why would we want to force them to stay here?”

About 5000 of the refugees who enter Canada from the U.S. each year come through Buffalo, specifically through Vive: An Organization for World Refugees. At Vive’s La Casa, a converted parish school building with 110 beds and a sprawling basement cafeteria, the group provides food and shelter, as well as medical, legal, and counseling services for refugees in transit between the two countries. (Some residents have lost their cases in Canada and been deported to the U.S.)

Located on a quiet street in a run-down black neighborhood, Vive is better known in Africa, Asia, and Latin America than it is among the citizens of Buffalo. Most Canadian-bound refugees staying at La Casa set out with its address in their pockets: Like similar, smaller programs in Vermont and Detroit, Vive is publicized both by settled refugees who share their route with relatives back home, and by agents—or “smugglers”—who arrange passage. They come through these cities because it’s often easier to get flights to the U.S. than to Canada—and often easier to get U.S. visas, too, since Canada has so few consular offices overseas. Those from Central America often come by land.

Working with Citizenship Immigration Canada (CIC)—the country’s equivalent to our INS—Vive helps set up refugee claim appointments for its clientele at CIC’s office on the Canadian side of the border. When the time comes, a taxi driver, like Croom, delivers them.

It is not lost on Croom, an African American, that Buffalo has long been a gateway to freedom. After the Fugitive Slave Act of 1850—which mandated the return of runaway slaves to their owners no matter where in the Union they were captured—Buffalo was a critical destination on the Underground Railroad. Slaves who made it there and crossed the border found liberty. So for Croom, ferrying today’s refugees at $45 for the 20-minute ride is not just a business that the safe-third-country accord will most certainly slash. It is also a mission. It’s “fulfilling,” he says, “to be in a position to help people trying to get away from terrible circumstances.”


At 3:10, the Sudanese family emerges from the building, stuffs suitcases bound with string into Croom’s trunk, and piles in: a 12-year-old girl and 13-year-old boy into the backseat, Mom up front. Three older kids go in a second car and the caravan heads to the Peace Bridge. Built in 1927, the multi-lane bridge lunges over the Niagara River just above its source in Lake Erie. The girl clutches a small suitcase to her chest, the boy’s legs jitter nonstop and both stare out the window, trying to size up a continent they’ve been on for all of 48 hours.

Afraid to reveal their identities or any details of their story, Mom will say only that she is a women’s rights activist, that they’ve been living as refugees in Kenya for a while, and that they need to flee because of a “security problem.” They paid an agent to get them over. (They would not disclose the price, but a 22-year-old Somali woman who took the taxi ride the next day—with only the colorful dress on her back, no documents or luggage—said arranging her passage cost $3000; a Sri Lankan woman, an English teacher back home, said her agent charged $20,000.) The Sudanese family flew into JFK, breezed by the passport check with tourist visas the agent helped procure, and, following his instructions, boarded a bus for Buffalo and, upon arrival, phoned Vive.

When the new rule goes into effect, only a few thousand who meet special conditions will be allowed to plead their case in Canada. Others will try, instead, to cross clandestinely and take advantage of a law that allows those on Canadian soil to make an “inland” claim for “protected status.” So, as Vive’s executive director, Christopher Owens, sees it, the “Smart Border” accord “will encourage illegal entry, increase the influence of smugglers, make the border less secure, and endanger refugees’ lives.”

At public hearings on the accord in Washington on August 1, U.S. officials admitted as much. The U.S. doesn’t expect all 15,000 of the migrants now making their way via the U.S. to Canada to end up rejected and turned over to the INS. Joseph Langlois of the INS asylum division said that several thousand won’t even try to go to Canada or will find a way to get there without passing through the U.S. Several thousand others will be welcomed into Canada by meeting the exceptions allowed in the agreement. And the rest, said Langlois, “will enter Canada illegally.”

Says Owens, “I was dumbfounded when he said they expected three or four thousand people would cross the border illegally. To hear an INS person shrugging that off as Canada’s problem—that just knocked me out.”

The Canadian-U.S. border stretches 4000 miles—twice as long as the Mexican border. Massive freight traffic pours across all along this border with America’s biggest trading partner, but most of the human migration—legal and otherwise—takes place east of the Great Lakes, undoubtedly because migrants expect they can blend in and find jobs in big cities like Toronto and New York. Few people try to sneak over at unofficial crossings in either direction, according to Ed Duda, deputy chief of the Border Patrol’s Buffalo Sector, which counted 65 heading for the U.S. last year. “We’re not exactly being overrun,” says Duda.

Could the safe-third-country rule change that? “I can’t give my opinion on the agreement,” Duda demurs, “but from experience I think we can assume that people who think they will be rejected going the official route will find another way to get into Canada.” And they’ll try the only way they can in an area that is all water boundary: by crossing the river. Duda doesn’t recommend it. Though the Niagara is only half a mile wide—it takes 15 or 20 minutes to paddle across in a rowboat—the current rushing from Niagara Falls is so strong that when Border Patrol does find a body in the river, “the coroner can have trouble identifying who it is. They can be stripped of their clothing and—excuse me for being gory—even their body parts. Sometimes you can’t even recognize that it’s a body part until you get real close to it.”

But like the estimated 300 people who died last year in overheated trucks, or on long, parched walks coming up from Mexico, those desperate to get into Canada are likely to risk it—even though they’re entering from the U.S., a “safe third country.”


There are myriad reasons, chief among them that refugees want to be reunited with relatives or friends in communities where their language is spoken and the culture is familiar. Canada, for instance, has large, vibrant concentrations of immigrants from Sri Lanka and Congo, and their compatriots want to join them. But actually trying to choose which country you’d like to live in—or trying to manipulate the system by applying for asylum in both countries—amounts to what supporters of the accord disdain as “forum shopping.” Refugees should count themselves lucky to be out of danger, they say, and not get picky about who shelters them. “It’s not a matter of shopping for the country that you want,” Canada’s deputy prime minister, John Manley, said after signing an agreement in principle with U.S. homeland security chief Tom Ridge on June 28. “It’s a matter of escaping the oppression that you face.”

But advocates regard this policy as needlessly heartless and unrealistic—not to mention in violation of principles of the UN High Commissioner for Refugees. These are refugees, after all, who have experienced violence, persecution, possibly even torture. Their lives have been in total upheaval. Isn’t it logical that a French-speaking Rwandan, for instance, would prefer Québec to New Jersey? What is more, typically when people apply for asylum in both countries, it’s because the system forces them to. Refugees on their way to Canada who are nabbed by the INS in America can stave off deportation—though not always detention—only by applying for asylum here. That may not have been their intention, but their way to Canada was blocked.

Both governments say they are dealing with those cultural issues by allowing exceptions for family members, unaccompanied minors, and others. But advocates respond that these are ill defined and difficult to prove. Wendy Young of the Women’s Commission for Refugee Women and Children notes, for instance, that the provision for relatives is “tied to a Western conception of nuclear family.” African women who lose their husbands and end up as single heads of households often turn to the husband’s brother for financial and emotional support—but in-laws are not authorized by the agreement.

Meanwhile, if someone does claim to have, say, a sibling in Canada, what will happen to her while the CIC goes through the process of confirming that? And how will they do it? “Refugees often don’t have documents establishing their own identity,” says Janet Dench of the Canadian Council for Refugees. “And even if they do have them, how do you prove that somebody is your sister? Nobody carries around a family tree certified by some authority.”

Differences in immigration law and policy between the U.S. and Canada also account for some people’s passion to go north. Asylum applicants in the U.S., for example, are refused any authorization to work for a minimum of five months, while those in Canada are permitted to seek jobs right away. Canada’s eastern provinces also provide free legal representation to refugees, unlike the U.S. Most important, perhaps, while both countries define refugees as people unable or unwilling to return to their country of nationality because of a “well-founded fear of persecution” on account of race, religion, nationality, membership in a particular social group, or political opinion, Canada in some instances grants a little more benefit of the doubt.

Immigration attorneys in the U.S. tell countless stories of asylum seekers who had clearly been abused but were denied status because the reason they suffered violence—or the people who attacked them—did not fall into one of the official categories. Colombians who get caught in the crossfire between guerrillas and paramilitaries, for instance, don’t fare well in the U.S., which often regards them as being persecuted only out of bad luck. Canada has its share of seemingly arbitrary rulings, too, advocates say, but unlike the U.S., says Dench, in Canada “we don’t bend over backwards” to try to prove that a claimant experienced persecution for some reason the law doesn’t recognize.

The Sudanese mom in the front seat of Jon Croom’s Crown Victoria shudders when asked what she’d do if she were turned back at the Peace Bridge and told she’d have to ask for asylum in America. “It’s not possible” is all she will say.

Were she returned, she’d have to make her request to the already overburdened INS, where it takes as much as two years for an asylum case to be resolved—or more if the decision is appealed. Nonetheless, the Bush administration is poised to clinch an agreement with Canada that is likely to throw thousands of new cases into the logjam. They’re trying to “fix a system that ain’t broke,” says Bill Frelick, director of Amnesty International-USA’s Refugee Program, and in doing so, are “creating new sets of problems.”


At Vive, Owens and his staff are bracing for the day word gets out to refugees that the agreement is going forward: In May and June, they were overwhelmed by 1500 refugees coming in through Buffalo, trying to beat new restrictions in Canadian immigration law that went into effect on June 28. Owens expects an even bigger onslaught as the safe-third-country accord moves inexorably forward.

While Owens wants to see those who prefer Canada to be admitted up north, he has dreamy visions of what could happen with those who are rejected: “We should welcome them to settle in Buffalo,” he suggests, sitting in his office in the ramshackle neighborhood where there’s not a fresh vegetable or newspaper on sale for miles. “The people who come through here—engineers, physicians, teachers—are a tremendous resource. They have talent and optimism and want to work hard. We need that energy in Buffalo.”


Detainees Equal Dollars

It was a shaky spring for the correctional workers of Hastings, Nebraska (pop. 24,064), as the stagnation in the nation’s prison population and the increasingly high costs of incarceration jostled the sleepy town, some two hours’ drive from Lincoln. On April 9, the 84 employees of the Hastings Correctional Center were told that the 186-bed facility would be closing at the end of June. State funds were scraping bottom, and the $2.5 million annual price tag for the prison was too big a burden to carry. “We really didn’t know what we would do,” says Jim Morgan, who had been working at HCC for 15 years and lives to this day in the house where he was born. “There aren’t a lot of job opportunities out here, and most of us have homes and kids and couldn’t even think about moving somewhere else.” For two months, the workers scrambled, filling out applications at nearby meatpacking and cardboard-container plants and anticipating long hours in the unemployment office.

Then salvation came from, of all places, the Immigration and Naturalization Service. Days after HCC closed as a state prison in June, it reopened as an INS detention center.

“It’s a win-win,” says Morgan. The INS is desperate for more beds for its ever expanding detainee population. And the state of Nebraska, collecting $65 per detainee per day from the INS, rakes in more than $1 million a year over and above the cost of running the place.

County jailers have long known that housing INS detainees pumps easy income into the coffers. Nearly 900 facilities around the country provide beds for the INS, and in interviews over the years, several county sheriffs and wardens have described such detainees as a “cash crop.”

Passaic County Jail in New Jersey learned the lucrative lesson after 9-11, as INS transfers boosted its detainee population from 40 to 386 by December 18. The INS paid $77 per day per detainee, compared to New Jersey reimbursements of $62 for state prisoners; some $3 million in INS payments poured into Passaic last year.

Now, in places like Hastings all around the country, prisons are seeking to cut such deals on a larger scale. At the end of July the Bureau of Justice Statistics reported a decline in the state prison population, reversing a decade-long trend that produced a prison-building boom across America. The only incarcerated populations sustaining reliable growth now are INS detainees and federal prisoners, many of them noncitizens. Those with an interest in keeping multitudes behind bars—whether public employees working in the prisons that expanded in the ’90s, or for-profit companies that have seen their stock prices plunge in the last couple of years—are coming to regard immigrants as their redeemers.

Like agriculture, restaurants, hotels, and other realms of American business, the prison-industrial complex now also looks to illegal immigrants as the most promising means of keeping them afloat. The danger, anti-prison activists say, is that the pressure to fill empty cells will add even more fuel to the demand to round up immigrants.

As for the workers in Hastings, “We’re sitting back smiling,” says Morgan. “Nebraska is still going through a crunch, but they can’t touch us. We’re all federal dollars now. Congress would have to do something very big to affect our jobs—and it’s not like they’re going to give amnesty to everyone.”

Immigrant Incarceration Booms

Quite the contrary. The number of INS detainees—people being held administratively as they await the outcome of deportation proceedings—tripled since 1994, from an average daily population of 5532 to nearly 20,000 last year. Some have been apprehended at the border, others nabbed for staying in the country without documents, and still others have completed prison sentences for crimes that have made them deportable. On any given day, the INS holds about 4500 of them in facilities the agency runs itself, while some 2000—many of them asylum seekers—languish in private lockups under contract with the INS. Some 10,000 are farmed out to county and state prisons. For the INS, that’s still not enough. The proposed $6.3 billion budget for fiscal 2003 slates more than $50 million for the “construction of detention facilities.”

At the same time, the number of noncitizen inmates in federal prisons doing time for the crime of breaking immigration laws has skyrocketed as U.S. Attorneys have zealously gone after illegal border crossers they once sent right into deportation proceedings. Last week the Justice Department’s Bureau of Justice Statistics announced that the number of people prosecuted for immigration offenses in federal courts more than doubled from 1996 to 2000, growing from 6605 defendants to 15,613.

For both detainees and noncitizen inmates, the swelling numbers can be traced to the draconian 1996 reforms in immigration law, which expanded the scope of crimes considered deportable offenses, made detention mandatory for almost all people facing deportation, and increased the number of Border Patrol officers apprehending illegal entrants, especially in the Southwest. Meanwhile, changes in federal sentencing law increased the length of prison sentences for immigration offenses. Between 1986 and 2000, that average increased from 3.6 months to roughly 21 months.

Attorney Andrea Matheson, who recently finished a four-year stint as a federal public defender in Tucson, Arizona, saw hundreds of Mexicans put away in federal prisons for trying to re-enter the U.S.—whether to seek work or to reunite with their families—after having previously been tossed back across the border. She sums up how the system works: “The government spends a fortune guarding the border. Then it spends another fortune catching the people who make it across. Once it has them, it spends yet another fortune prosecuting them, including for lawyers to defend them and all the machinery of the court system. Another fortune goes to keeping them in prison. And after all this, the government puts them in deportation proceedings so the INS can spend its own fortune on sending them back. In the end, many of them just come over again.”

Among the 500 cases she defended each year, Matheson had many repeat clients—one of them tried his luck 42 times. The Justice Department gets fed up with the scofflaws, she says, and imposes increasingly harsh sentences for “felony re-entry”—which can amount to as much as 10 years. Someone who re-enters illegally who once committed a crime in the U.S.—no matter how many years before, no matter how minor, no matter that he or she completed a sentence for it—can also be looking at a hugely enhanced sentence.

The security fervor that has swept over the country since September has only accelerated the upward arc in the numbers. The general lack of public outcry against the post-9-11 sweeps, along with Attorney General Ashcroft’s promise to hunt down and deport hundreds of thousands of “absconders”—people who have not responded to final orders of deportation—and to prosecute millions of immigrants and visitors who fail to report address changes to the INS, could send the numbers of arrests into the stratosphere.

Longtime anti-prison activists see some scary writing on the wall. “The lesson of the drug war was that it didn’t make sense to lock people up for everything—it wasn’t necessarily good for them or for society,” says Kevin Pranis, an organizer with Not With Our Money, the national network resisting prison profiteering. “But a policy argument didn’t get through to anyone as long as you had prison capacity and pressure to keep it filled. Immigrant activists have to start organizing not just around the injustice of detention, but also to reduce capacity.” Otherwise, as one incarceration boom trails off, another will be in line to take its place.

Private Prison Bonanza

That’s certainly how executives in the for-profit prison business are reading the situation. Take Wackenhut Corrections Corporation, which has touted itself as “the global leader in privatized corrections” (one of its subsidiaries runs the notorious detention camp in Woomera, Australia, where asylum seekers have staged hunger strikes, and suicide attempts are frequent). In a public quarterly conference call between executives and investment analysts earlier this month, CEO George Zoley enthused about opportunities for growth in the U.S., citing the government’s plans “to build up the country’s capacity for detaining illegal immigration at a number of locations throughout the country.”

Steve Logan, CEO of Cornell Companies, which operates the country’s largest private prison (a 2454-bed complex in Texas), was just as blunt when speaking with his colleagues last winter. “The federal business is the best business for us,” he said, and the events of September 11 are “increasing that level of business.” He exulted over the high numbers of Middle Easterners in the U.S. and their “being targeted.”

Executives in the industry are also quick to point out—as Zoley boasts—”that it was really the INS that started privatized corrections in this country.” Wackenhut established its first facility in the mid ’80s—a minimum-security undocumented-alien detention center in Colorado. The Corrections Corporation of America (CCA), the U.S.’s most aggressive pioneer in the field, got its start the same way, housing undocumented Latin Americans in a similar center in Texas.

Presenting themselves as a solution to overcrowding in jails bulging with drug offenders serving increasingly strict sentences, CCA, Wackenhut, and others promised to build prisons faster and to run them more cheaply than the state could. Contracts poured in. CCA’s revenues leaped from $14 million in 1986 to $120 million in 1994, while Wackenhut’s climbed from $19 million in 1989 to $84 million in 1994. But by the late ’90s, the flaws that anti-privatization activists had long decried began to glare. In 1996 a General Accounting Office survey concluded that private prisons were no more economical than public ones.

Meanwhile, scandals such as prisoner escapes, abuses by guards, inmate riots over substandard conditions (including an infamous 1995 tear-up at an INS facility in Elizabeth, New Jersey, then under contract to Esmor) further tainted the industry. By the turn of the new century, states began to cancel some contracts. In September 2000, Business Week proclaimed that “the industry’s heyday may already be history.” CCA stock lost 93 percent of its value that year.

But in what criminal-justice policy analyst Judith Greene calls “an astonishing bailout” the feds stepped in, seeking more beds for their own growing inmate population—which hit 127,000 last year. As in the states, the majority of federal prisoners are drug offenders; but more than 35,000 of the total are “criminal aliens”—that is, noncitizens who have been convicted of crimes (including immigration crimes). In a comprehensive article published in The American Prospect early last September, Greene detailed Federal Bureau of Prisons (FBOP) calls for contractors to build facilities specifically to meet its “criminal alien requirements” (CAR). The FBOP put out a series of requests for proposals between 1999 and 2000, soliciting up to 10,000 beds in CAR contracts worth hundreds of millions of dollars. For CCA and the like, the opportunity was a godsend.

As Greene explains, FBOP officials figured that despite their checkered history, for-profit companies could handle special noncitizen facilities—after all, most immigrant inmates are nonviolent and can be housed in low-security, dorm-like settings. Besides, the officials reason, as inmates on their way to deportation after doing their time, they don’t need rehab and other special programs. Greene calls this logic “not far from acknowledging that they think they can get away with providing second-class prisons for these second-class prisoners.” It also didn’t hurt that the industry is filled with executives who once served high up in the FBOP—or that between 1995 and 2000, according to the Center for Responsible Politics, private prison companies made more than $528,000 in federal campaign contributions, much of it in soft money.

Under the first CAR contract, CCA turned an albatross into a cash cow as the feds signed up its prison in California City, which CCA had built on spec for $106 million in 1998—and which then sat empty as California’s prison population stalled and local prison guard unions campaigned against it. Most astonishing, the FBOP promised CCA a 95 percent occupancy rate—meaning the federal government would pay for 95 percent of the bed capacity at all times, no matter how many were actually in use.

But late in 2001, the FBOP put its new solicitations on hold, awarding only one of five promised CAR contracts this year. Greene suggests that the feds pulled back as they began to consider that the growth in their own populations could slow down. The dust will have to settle on the reorganization of agencies into a Department of Homeland Security before the government can shape its future detention priorities.

For their part, private prison execs are watching the reorganization debates with heady anticipation; they have reported government insiders encouraging them to hang onto the sites they made ready for the CAR solicitations—especially those in border states.

After all, in a February conference call, Wackenhut’s Zoley declared it “almost an oddity” that “given the size of our country and the number of illegal immigrants entering into our country that we have such a small number of beds for detention purposes.” He added, “This has become an issue under the homeland security theme, and I think it’s likely we are going to see an increase in that area.” Indeed, the government recently centralized all immigrant detention functions into the new post of detention trustee—and hired a former Bureau of Prisons procurement officer, Craig Unger, to fill it. The proposed budget tosses Unger $615 million for contracting out immigrant detention beds.

Bidding Wars

Advocates are watching uneasily as the government increasingly courts the private prison operators. They worry about bidding wars among potential jailers, who might be willing to further cut services to detainees in exchange for contracts. Many state and local providers, the advocates charge, already fail to meet the INS’s own weak detention standards.

“We have already seen how destructively the profit motive can undermine justice,” says Matt Wilch, director of asylum and immigration concerns at Lutheran Immigration and Refugee Service. “We’ve seen that trying to keep costs low means setting up in isolated, rural areas, far from attorneys and support networks; avoiding expenses for special medical or dietary needs; attracting low-wage employees who aren’t sufficiently professional.”

But jailers who have seen a steady rise in their immigrant populations in recent years are confident the flow will continue to increase—so confident that they’ve already shrugged off demands to offer bargain rates.

In York, Pennsylvania, for instance, where the county correctional facility holds the country’s largest INS population—some 750 to 800 on any given day—the government has already demanded a price-slashing. A report last year by the Office of the Inspector General alleged that York was overestimating its costs and challenged its charge of $60 per detainee per day. The IG thinks $39 a day would be fair. “Let them put it all out to a bid,” says warden Tom Hogan. “Nobody can compete with us.”

York caught the immigrant detention wave back in 1993, when hundreds of undocumented Chinese men and women washed ashore in the Golden Venture, and the INS wanted to keep them all in close proximity, since they all had similar cases. York had just completed an expansion and happily took them in—along with the INS’s lucre, which, county officials boasted, helped keep property taxes down. Since then, it has deliberately enlarged its capacity for INS detainees, completing a new $20 million wing in 1999 for the purpose.

“The IG is of the opinion that we should provide this service for free,” chides Hogan. He’d like to work things out, but is willing to call the agency’s bluff. “We’ll get out of the business if we have to,” he says. “The INS can find someplace else to put our 800 detainees.”


Protecting the Homeland

All month, some dozen congressional committees have been hammering out the government’s biggest reorganization plan since the 1940s: the consolidation of as many as 180 different government agencies—practically everything but the FBI and CIA—into President Bush’s Department of Homeland Security (DHS). No one objects to a cabinet-level behemoth if it would thwart terrorism, but legislators are arguing heatedly over such issues as what functions would go where, who would control the flow of money among the divisions of the $37 billion department and what sacrifices employees would be expected to make. (The administration’s plan could take away workers’ rights to unionize as well as access to whistle-blower protections.)

Nowhere is the debate more vehement than around the fate of the Immigration and Naturalization Service (INS). Long the butt of ridicule and reproof from legislators on both sides of the aisle, the agency came under increasing fire after 9-11 for its chronic sluggishness, incompetence, and corruption, which helped make it easy for the hijackers to enter the U.S., enroll in flight schools, and board domestic flights without so much as an eyebrow raised.

Even before last September, the INS was slated for major reorganization. Likely improvements for both the enforcement and service sides, some years in the making, were on the verge of being adopted. Now the best of those efforts are at risk of being washed away in the tide of homeland security. The president proposes to absorb the INS into a Border and Transportation Security Division of the new DHS, which “will only make it more dysfunctional,” law professor Bill Ong Hing—a member of a Department of Justice advisory panel on INS and Border Patrol misconduct under Janet Reno—said in Senate hearings late last month. For example, years of studies have concluded that the agency’s commissioner needs to have higher status within the Justice Department to be taken seriously by the administration and to manage the 33 INS district directors who, in the words of a policy paper by the National Immigration Forum, “operate decentralized fiefdoms around the country.”

The Bush proposal would push the INS director further down the totem pole, thicken red tape, and suffuse all INS functions with a voracious enforcement mentality. In the House debates over the last two weeks, committees contested the Bush plan, proposing to split off some INS duties and leave them in the Justice Department, and no doubt Senate committees will offer their own variations as they take on the DHS reorganization this week. One thing is clear: Bush’s plan marches 180 degrees in the wrong direction.

As Congress rushes to close the deal on the Department of Homeland Security before its August recess, the Voice consulted experts in security, migration, and civil rights and immigration law for suggestions on what the U.S. could do to improve security and preserve America as a nation animated by immigrants, reverence for constitutional protections, and commitment to civil liberties.

These experts agree that fortress-America police tactics are not the only means—indeed, are not the surest means—of safeguarding America’s people and ideals. They propose a panoply of more democratic and more effective methods. Here are 10 of them.

1. Isolate Terrorism, Not America Some 30 million people enter the United States each year, almost all of them on temporary student, tourist, or business visas; about a million seek to settle here and build new lives. Restrictionists like Representative George Gekas, a Pennsylvania Republican who introduced sweeping anti-immigration legislation late last month, insist that letting in fewer immigrants or visitors means reducing the risk of terrorists slipping through. Such reasoning—Jeanne Butterfield, executive director of the American Immigration Lawyers Association, calls it “totally bogus”—is like banning the sale of dry beans because a couple of stones get into the pile. The point is to improve the sifting process, not to deny the U.S. the many benefits that most immigrants and visitors bring. According to the National Immigration Forum, immigrants contribute some $10 billion to the U.S. economy over and above what they cost in social services—and that doesn’t include the impact of immigrant-owned businesses. Immigrants pay an estimated $133 billion in direct taxes; meanwhile, visiting students and tourists bring billions more into the economy each year.

Isolating America not only injures the economy more brutally than any number of CEO scandals can, but also dries up America’s cultural richness, its identity as a land thriving on the embrace of new ideas and people. Butterfield warns against the recent “paradigm shift” in Congress that casts immigration policy as purely a security matter and conflates INS reform with shoring up safety. America’s openness has always been the core of its greatness, advocates argue, and the focus must remain on screening out those who are threats instead of on how to close the borders generally.

2. Gather Good Information—and Use It The INS must update its technology, hire people who know what to do with it, and become part of a genuine collaboration between the State Department, Customs, and intelligence services. The infamous INS, FBI, and CIA failures of 9-11 were all a matter of not noticing, properly interpreting, or sharing information. Nine of the 19 hijackers, for instance, were tagged by a relatively crude airline computer program that flags people with unusual ticket-buying behavior—such as last-minute, one-way purchases of tickets to far-off destinations, paid for in cash—but nobody was paying attention. The Enhanced Border Security and Visa Entry Reform Act, signed into law in May, goes a long way toward upgrading staffing and technology at INS and Customs, promoting the use of counterfeit-resistant passports and visas, and mandating the sharing of information among various gatekeeper agencies by giving joint access to various databases. Under such a system, the INS would have been able to notice, for instance, that Khalid Al-Midhar, who may have piloted the plane that slammed into the Pentagon on 9-11, had been identified early in 2001 by the CIA as having links to an attacker of the U.S.S. Cole. By the time the CIA notified the INS—August 2001—Al-Midhar had already entered the U.S. without a hitch.


3. Shrink the Haystack Identifying criminals from reams of information is a needle-in-the-haystack pursuit. Security experts applaud new tools to help them hone in on that needle—but it’s equally important, they say, to shrink the haystack. Instead, some new procedures heap more hay onto the pile. For instance, knowing that people granted student visas actually enroll in school is useful—it weeds out those who never do as possibly suspicious. But requiring that the INS track what they are majoring in and how many credits they’re taking only bogs the system down. Similarly, a proposed law requiring that male entrants from seven Middle Eastern countries (soon to be expanded to 26 countries, and then more) present themselves periodically to be photographed, fingerprinted, and report changes of address uses up tons of technical and human resources, but also produces tons of unusable information. Suppose Mohamed Atta had shown up for his fingerprint sessions. How would that have prevented—or even raised suspicions about—his nefarious plans?

4. End Racial Profiling Never mind that rounding up Arabs, South Asians, and Muslims on the basis of national origin and/or religion is politically incorrect, says law professor David Harris; what’s worse, the hard facts show that it is counterproductive. In his book Profiles in Injustice: Why Police Profiling Cannot Work, Harris examines statistics collected by state and local police and customs-inspection agencies and builds a damning case that race-based stops-and-searches don’t help get guns, drugs, or criminals off the streets. In New York, for instance, a 1999 attorney general’s report showed that police stops of African Americans and Latinos, though far more common, were less likely to result in arrests than stops of whites.

“Race is a distraction,” Harris explains. “It takes law enforcement off the track.” And of course, Al Qaeda is smart enough to sign up recruits who don’t fit the stereotype: suspected “dirty bomber” Jose Padilla, for example, is a Latino U.S. citizen. Finally, profiling alienates the very people who could assist the government most—including translators and informants. “We need people to come forward if they observe behavior that is genuinely suspicious,” says Harris. “That takes a relationship of trust and of people feeling they are part of America. So what do we do? Declare that thousands of Arab and Muslim men will be brought in for questioning and lock hundreds up for visa violations? It’s the dumbest thing we could do.”

5. Regularize the Status of Mexican and Other Undocumented Immigrants Who Contribute to America The U.S. spends millions of dollars each year going after undocumented Mexicans—even as agribusinesses demand the low-wage labor they provide. Before 9-11, as Migration Policy Institute co-director Demetrios Papademetriou puts it, the U.S. was finally beginning to “tell ourselves the truth about the realities of the labor market and to adjust immigration policy accordingly.” The U.S. and Mexico came close to agreeing on opening new legal channels for seasonal workers coming to the U.S. and for those already here to earn status.

Since then, panic has choked off these efforts. That’s too bad, says Papademetriou, because border security is improved when unauthorized migrants can be isolated. Moreover, the political game of chasing migrant workers “breeds illegality, turns employers into criminals, and encourages the violation of labor and human rights.” The INS pours resources into hounding lettuce pickers while Atta and his cohorts waltz right in. Meanwhile, a report released last week by the Public Policy Institute of California revealed that the $2.5 billion-plus crackdown on the Mexican border over the last nine years has increased the number of Mexicans who stay in the U.S. illegally rather than risk crossing back and forth for temporary jobs.


6. Improve the Service Side of the INS A permanent resident from Sweden—let’s call her Yvonne—files a routine application to bring her husband into the U.S. with a spousal visa. Months go by, then a year, and Yvonne’s request has yet to be processed; indeed, under the current backlog, such applications can take half a decade. So her husband gets a tourist visa, joins Yvonne, and stays on when the visa expires. The couple thus joins the millions of “illegal aliens” pushed out of status by the INS’s own sluggishness. (Non-citizen partners of gay and lesbian Americans are forced into this tourist-visa strategy from the get-go because they don’t qualify for spousal visas at all.) In turn, the enforcement side of the INS spends inordinate resources trying to find and deport them.

It’s impossible to calculate how many millions of dollars the INS might save on enforcement by beefing up its service provisions, but there’s no question that the mounting backlog—it quadrupled to nearly 4 million applications in the last decade, according to a May 2001 General Accounting Office report—diminishes security. “Staff are rewarded for the timely handling of petitions rather than for careful scrutiny of those petitions’ merits,” a more recent GAO study reported, leading to “rampant” and “pervasive” fraud. Critics of the DHS fear that the service side of the INS will wither under the pervasive enforcement mentality of the new department—or be left to shrivel financially if separated from the rest of the INS, as some Congress members have proposed. Either way, diminishing INS services further exacerbates the security threat.

7. Untangle the Laws Syed comes to the U.S. legally as a high-tech computer whiz—one of 195,000 “special workers” who are invited into the U.S. each year. But he loses his job when the dotcom bubble bursts, and thus his visa-sponsoring employer. In the meantime, he has married a U.S. citizen and had a child. He wants to legalize his status, but the law requires him to leave America and apply from his country of origin. Because he spent time here illegally, his re-entry can be barred for up to 10 years—and that’s not a matter of INS inefficiency, it’s the law. Why risk being separated from his family for so long? Why bother to apply for adjustment of his status? Hundreds of thousands don’t. And the INS goes after them at enormous cost.

That is just one of dozens of immigration laws Congress enacted to “get tough” on illegal aliens that sent the INS into overdrive. In the Senate hearings at the end of June, David A. Martin, former general counsel of the INS, said the INS has had little time to work on improvements over the last six years as it has scrambled to keep up with “a variety of complex new statutory initiatives” and an “unwieldy and hard-to-manage set of rules and procedures.” INS could provide better security if it were charged with carrying out simpler and more sensible laws.

8. Look Beyond the Border While the government seeks to plug holes—and corruption—in its visa-granting systems, it needs to focus at least as much attention on the movement of goods as on people, insists Stephen E. Flynn, a retired Coast Guard commander and now a national security expert at the Council on Foreign Relations. As he argues in a recent Foreign Affairs article, the most serious danger of the 9-11 attacks was “the exposure of the soft underbelly of globalization”: America’s embrace of global networks—along with capital’s resistance to regulations as barriers to competitiveness—has produced “lanes so open that they practically invite terrorists to do their worst.” As U.S. trade with Canada more than tripled from 1985 to 2000, Flynn notes, the number of Customs officials assigned to the northern border decreased by nearly a quarter. Moving biological or chemical weapons into the U.S. can be far easier than snagging a student visa.

But the fix cannot happen at the border itself. It takes five inspectors three hours to conduct a thorough check of a loaded 40-foot container or an 18-wheel truck, he points out, and in 2000, 11.6 million maritime containers, 11.5 million trucks, and 2.2 million railroad cars passed through U.S. border inspection. Cursory looks at even a minuscule portion of such vessels can back up border traffic for hours—producing chaos that terrorists can easily exploit. So inspections must, says Flynn, “move upstream.” That means employing such devices as biometric travel ID cards for transnational truckers and captains; loading containers in security-sanitized facilities and fitting them with tamper-resistant mechanical and electronic seals; tracking their routes with E-ZPass-like transponders. Such protocols require international cooperation—especially among the handful of “mega-ports” through which almost all trade passes (Long Beach, Los Angeles, Hong Kong, Singapore, Hamburg, Antwerp, Rotterdam). Security must extend far beyond the “homeland.”


9. Recognize the Connections Between U.S. Trade and Foreign Policy and Migration Controlling migration into the U.S. does not begin at the border. People leave their homes and their countries because of economic and political forces that are often manipulated—or dangerously neglected—by the U.S. Take U.S. policy on coffee, for instance. Until the 1990s, a key component of anti-Communist foreign policy was to artificially elevate coffee prices in Latin America to support the huge number of rural workers laboring in the coffee fields. As a recent Wall Street Journal investigation revealed, the post-Cold War ideology of free trade brought an end to international agreements to prop up coffee prices, and Latin American farms have collapsed. The World Bank estimates that in Central America and Mexico, 600,000 permanent and temporary coffee workers have lost their jobs in the last two years alone. With no means of making a living, they are heading north. “If you really want to do something about illegal immigration,” says the Migration Policy Institute’s Papademetriou, “you engage these places, spend some money, rethink trade policy. But nowadays, ‘security’ trumps everything, and in this environment, you can’t even mention such ideas. But of course they relate very directly to security if people are falling into criminal smuggling networks.”

10. Consider the Security Implications of U.S. Foreign Policy In the end, migration and foreign policy analysts say, the best way to reduce the number of potential terrorists trying to enter the U.S. is not primarily a matter of immigration policy, but of foreign policy: That is, the focus needs to be not on reducing immigrants, but on reducing potential terrorists. In political terms, suggests Phyllis Bennis, author of Before & After: U.S. Foreign Policy and the September 11th Crisis, America is doing the opposite. As long as the U.S. is perceived as bringing death and disease to innocent people in Iraq, ignoring the plight of Palestinians, pursuing Saddam Hussein with unilateral bellicosity, and holding the rest in the world in contempt by withdrawing from international treaties, bin Laden will have an eager gallery to play to. Bennis is cautious to note that “no matter how drastically our government changes its policy, it can’t eliminate the hostility of an Osama bin Laden.” Nonetheless, she says, policies redressing these matters “would dramatically change the widespread support the attacks received in wide swatches of the world and dry up the breeding grounds for his recruits.” The Department of Homeland Security—no matter how it is configured—cannot accomplish that crucial task.


The Golden Ticket

Dozens of desperate people greeted Erin Corcoran as she made her way to work each morning in Lusaka, Zambia, last spring, where she spent two months interviewing refugees seeking to be taken in by the United States. Every day, as a UN van transported her to the squat stone building where the UN High Commissioner for Refugees (UNHCR) keeps offices, Corcoran had to repress the dread rising in her stomach as she gazed out at the long line of supplicants who had fled to Zambia from Angola, Congo, and Somalia. Because each case took at least eight hours to prepare, Corcoran knew that most of those needy people would never even get past the door for an interview, much less be granted what refugee workers call, with no trace of irony, “the golden ticket”—a chance to start a new life in America, not only legally but with government aid.

At 28, with a freshly minted law degree, a month on the job as a pro bono immigration attorney in New York, and enormous hope that she could help make a difference in the lives of at least a handful of the world’s 14 million refugees, Corcoran was taking on a role in the least known and least controversial of America’s immigration programs: a cumbersome but dogged system for resettling each year tens of thousands of the masses yearning to breathe free.

Her job, under contract with UNHCR, was to screen applicants and prepare the paperwork showing, as official policy puts it, that they were unable or unwilling to return to their country of nationality because of a “well-founded fear of persecution.” America’s Immigration and Naturalization Service (INS) would review the materials and conduct follow-up interviews later to determine who would be granted one of the precious slots the U.S. sets aside for refugees each year.

The ideal solution for refugees is, of course, to go home after the threats have subsided, or, failing that, to be absorbed fully into the country they have fled to. When those options fail—as they do more and more—resettlement in a third country is the best choice. Advocates argue that the U.S.’s declining resettlement numbers—70,000 for the current year—are far too low to address the colossal humanitarian crises erupting around the world. Yet nobody discounts the significance of every life that is saved.

The post-9-11 scramble to fortify U.S. borders knocked the resettlement process way off course. Nobody has ever accused the program of posing a security threat—the worst anyone can say is that it does too little too slowly—but refugee admissions was the only immigration program in the country to be completely suspended after the World Trade Center attacks. While foreign students, technical workers, and tourists continued to stream into America, some 22,000 people running from persecution, who had already been cleared for resettlement, were left stranded. Many had sold their belongings, abandoned jobs and abodes, and even acquired airplane tickets (for which they may have had to take out loans). Others never made it that far. The stack of some 50 applications Corcoran painstakingly prepared a year ago was left untouched. The INS had planned to send officials for follow-up interviews in September, but called off the mission after the 11th, concerned about the safety of government personnel.

Now the INS machinery is beginning to grind again. In February, interviews resumed in such places as Moscow, Vienna, and Vietnam, and in recent weeks officials have taken up posts in major cities in Africa, and might even make a “circuit tour” that includes Lusaka, where they can blow the dust off Corcoran’s files. About half of the 22,000 stranded in September have trickled into the U.S. over the last couple of months, but new security measures have brought further delays for others. Never mind that “refugees have always gone through the most extensive check of any newcomers, and now officials have added as thorough a scrubbing as anyone can imagine,” notes Leonard Glickman, president of the Hebrew Immigrant Aid Society. “If you’re a terrorist trying to come here to do harm, the refugee program would be the least efficient way for you to try.”

Refugee advocates and government sources agree that there is no way the U.S. will come close to this year’s target number of 70,000 resettlements without some special emergency effort, and so far, none is in the offing. Now, with the fate of the INS itself in doubt—Congress voted 405-9 last month to abolish the beleaguered agency—funding for the INS’s part in the process may be up for grabs. The additional scrutiny in the name of security makes the program more expensive and that makes refugee resettlement vulnerable, according to scholar Arthur Helton, author of The Price of Indifference: Refugees & Humanitarian Action in the New Century. He predicts “a slowly eroding commitment” on Congress’s part. Refugees—”history’s losers” as one UNHCR official describes them—have become 9-11’s other victims.


Among the applicants Corcoran put forward during her stint in Africa were a Somali woman with razor scars on her face and a chunk of her nose missing, the result of injuries she suffered as an ethnic minority in the refugee camp; a young woman who was held captive as a Zambian man’s sex slave and then kicked out; six Congolese siblings, ages five to 17, who had made their way to Zambia after their father had been kidnapped. And woman after woman who had been raped. “It was a fact of life,” Corcoran recalls, “so common that women didn’t usually think of being raped as relevant to their claim until I asked about it.”

These are not the stories drafters of international law had in mind when they wrote the Refugee Convention in 1951 in response to the crisis of World War II. But the horror of having turned away those fleeing Nazi extermination—most notoriously, though hardly uniquely, when the U.S. refused the USS St. Louis a port in 1939 and sent 900 Jews to certain death—stirred a universal commitment to providing safe haven for the persecuted. Optimistically, perhaps, officials expected the convention to become obsolete within a few years; it applied only to victims of the Second World War. A sobering 1967 protocol updated the convention and expanded its scope. The U.S. signed on in 1968.

Nonetheless, until 1980, when Congress passed the landmark Refugee Act, the U.S. had no formal resettlement policy. America took in World War II refugees on an ad hoc basis through the initiative of private, usually religious, organizations. More active from the late 1950s through the 1970s, the federal government gave almost exclusive preference to those fleeing Communist countries, still on a case-by-case basis—admitting Hungarians, Cubans, Vietnamese, and more Cubans.

With the end of the Cold War in the ’80s, however, refugee allocations stopped being, at least so baldly, foreign policy by other means. Nowadays, says Lavinia Limón, head of the nonprofit Immigration and Refugee Services of America (IRSA), selection is often a function of “which group has the best lobbying on their behalf or where CNN has just been.”

If there’s little strategic planning in U.S. resettlement policy, there is a formidable infrastructure—and bureaucracy: an Office of Refugee Resettlement within the Department of Health and Human Services as well as a Bureau of Population, Refugees, and Migration within the State Department. Along with the INS, state-level refugee coordinator offices, and some 10 national voluntary agencies, these organizations have over the last 20 years helped to bring in more than 2 million people, and provided such assistance as job training, housing, and English classes.

The U.S. designates three categories of eligible refugees: those recommended by the UNHCR (or a local U.S. embassy), those with close relatives already settled in the U.S., and those belonging to an ethnic or religious group specified by the president as of special concern to the U.S.—Soviet Jews, for instance, or, more recently, religious minorities from Iran and the “Lost Boys” of Sudan (thousands of young cattle tenders who were left in the wilderness of southern Sudan with only each other to rely on after soldiers burned their villages in the late 1980s).

Advocates are pressing for the government to designate other special groups—including “at-risk women,” vulnerable in some camps because they lack the protection of a father or husband—and to expedite their processing for arrival this year. At the very least, they want numbers short of 70,000 to be rolled over to next year. Most of all, says IRSA’s Limón, “We need government to do what it’s not best known for: Stretch their imaginations. Why not open up Fort Dix and get people in here, like we did for the Kosovars? Why just insist that the pace can’t be picked up under the current constructs? Change the constructs!”

Looking at the global refugee crisis more widely, many in the “refugee community”—as advocates, aid workers, attorneys, and policy wonks have come to be known—are trying to push for broad new paradigms even as they do what they can to offer some concrete assistance to genuinely suffering people under the existing rules. “The system is deeply flawed,” Arthur Helton explains. “It’s built on the assumption that after a crisis abates, it will never be used again, so it never gets ready to do things in a proactive way.” It’s not enough to “warehouse people” or to “administer misery,” he argues. What is more, adds Limón, military actions and foreign policy decisions—and economic globalization, one may well add—often produce vast migrations, and those effects ought to be taken into account. How could the U.S. not have anticipated, for example, that Serbian president Slobodan Milosevic’s “ethnic cleansing” and NATO’s bombing of Kosovo would send hordes of civilians running toward safety in Macedonia?


Of course, plucking, say, 3000 refugees out of a camp of 50,000 makes a tremendous difference to those 3000, but it doesn’t solve the crisis. Says one refugee worker in southern Africa, “Providing for some resettlement and funding UNHCR so they can buy food and blankets for the camps is the only way the U.S. is involved in addressing the deprivations of this continent.” It’s not only a humanitarian cop-out, critics say, it is politically shortsighted.

“For 20 years we ignored 3 to 4 million Afghan refugees,” notes Limón. “Things got so destabilized that it became easy for bin Laden and his buddies to go in and take advantage. If you don’t give people a place to put down roots and live a life, it eventually comes back to bite you.”

At the heart of the trouble with the half-century-old model for assisting refugees is the very definition of the term. The UN regards only those who have fled their countries as refugees, for example, though today, tens of millions of people are displaced and living in danger and squalor within the borders of their home nations. What is more, those “merely” seeking a better life—economic migrants—are not regarded as requiring assistance at all, even though lack of work opportunities or near starvation can amount, arguably, to a form of persecution.

When it comes to qualifying for the U.S. resettlement program, it’s not enough to show that one has fled famine, drought, war, or general violence. Applicants must demonstrate that the persecution they’ve suffered is individual, that is, specifically directed at them, as the law has it, “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

So Erin Corcoran would listen carefully to the horror stories people recounted to her in Zambia and translate them into legalistic narratives that would pass muster with the INS. “More often than not, I could write the stories in a way that emphasized the individual persecution claims,” she explains. Indeed, the UNHCR recruited her precisely because, as an attorney typically battling the INS stateside on behalf of would-be immigrants in deportation proceedings, she knew just what agency officials were looking for.

Day after day, Corcoran drew out the stories and filled out the forms. “You choose the relevant facts that work and put the right things in the right boxes,” she says. “That’s what lawyers do: manipulate the facts around the legally constructed definitions.” It was a complicated role, she says. “I went very idealistic and ended up pretty cynical. There was no cognizable reason that some people got to see me and others didn’t. It seemed arbitrary and I hated playing God. I looked at camps full of 30,000 people and knew that I wasn’t even making a dent.”

On reflection, though, Corcoran has concluded that her time in Zambia was well spent. “It’s true that not everyone gets a fair shake, and I can’t fix that,” she says. “But it is better to save one than none.” She is planning to do another stint this summer—in Senegal, Ghana, or Cyprus.

This is the fourth of an ongoing series investigating the INS.

Related Story:

Haiti’s Unauthorized Refugees Held in Miami” by Alisa Solomon



Haiti’s Unauthorized Refugees Held in Miami

Refugees accepted for resettlement overseas are welcomed into the United States with open arms and a package of benefits. But those who flee to the U.S. on their own and request asylum from a “well-founded fear of persecution” once they get here can find themselves taken immediately to jail. These sometimes illegal entrants are do-it-yourself refugees. Those who have shown a “credible fear” of persecution in their homeland can be allowed to remain free until their immigration hearings. But if there’s concern that they won’t show up for those hearings, or that they present a threat to the community, the government detains them. Sometimes, critics charge, asylum seekers are locked up for questionable political reasons.

That’s precisely what is happening to some 165 asylum seekers from Haiti who have been imprisoned in Miami since the grounding of their ship on December 3, advocates claim. A lawsuit filed by advocates in March charges racist treatment by the Bush administration, which changed its detention policy on Haitian asylum seekers as an object lesson for other Haitians who might seek refuge from the impoverished and unstable nation, which is racked by human rights abuses. U.S. Attorneys said in court filings that the blanket detention of Haitians was intended “to discourage further risk-taking and to avoid an immigration crisis of the magnitude which existed during the early 1980s and 1990s with the Haitian and Cuban mass migrations.”

UNHCR objected to this reasoning in a mid-April statement, asserting that using detention as a deterrent is “contrary to international standards” and amounts to “arbitrary detention.” What’s more, the lawsuit charges, the detainees are being held in unsanitary and overcrowded conditions, and their proceedings are being so rushed that they can’t find lawyers or prepare their claims.

“If the government was truly concerned about saving lives, it would make sure that these Haitians had a full and fair opportunity to make their case for asylum,” says Cheryl Little, director of the Florida Immigrant Advocacy Center, which is spearheading the lawsuit. “There is no refugee processing taking place in Haiti,” she adds, “so the only way Haitians fleeing persecution can attempt to save their lives is to attempt to make it to shore here and apply for asylum. At the very least, we should be making sure their due-process rights are protected.”

Return to Alisa Solomon’s main story.


Nightmare in Miami

Christina Madrazo was waiting for the spin cycle to finish in a Miami laundromat when she noticed something that might put an end to her troubles: a law firm’s ad in a Spanish-language newspaper that said there were ways undocumented immigrants could become legal. Seven years had passed since Madrazo first snuck across the Rio Grande, fleeing the violence and rejection she had endured as a transsexual in Mexico, and she was tired of hiding. Without legal status, she couldn’t seek legitimate work, much less pursue her dream of becoming a fashion designer, so she’d been trying to piece together a living with a series of under-the-table odd jobs. Often she went to bed hungry.

Worse, the fear of being deported to Mexico throbbed constantly at the back of her mind. And if she ever forgot it, every time she looked in the mirror a scar next to her dainty right eyebrow reminded her of the beatings she’d taken from assailants who called her maricón (“faggot”) and insisted, with fists and heavy shoes, that she “act like a man.” At the attorney’s office, she was heartened to learn that sexual orientation was a category recognized in U.S. asylum law. She applied right away.

But instead of granting her the freedom “just to live my life and be myself,” the Immigration and Naturalization Service rejected her plea, and on May 4, 2000, took her straight from a hearing to the notorious Krome detention center on the swampy outskirts of Miami. Confined there for about three weeks, Madrazo alleges she was raped by an INS guard. Twice. On April 1, she will file a $15 million lawsuit against the U.S. government, charging the country from which she sought refuge with subjecting her to brutal attack. Her asylum appeal is still pending.

The lawsuit comes amid a string of high-profile embarrassments for the beleaguered immigration agency. Last week, four top officials in the INS were replaced in the wake of revelations that a Florida flight school received notification that visas had been approved for hijackers Mohamed Atta and Marwan al-Shehhi six months to the day after they crashed jets into the World Trade Center.

In addition to the relentless charges of ineptitude and inefficiency—from government inspection agencies as well as from members of Congress on both sides of the aisle—the INS is under a constant barrage of accusations of misconduct. Last year, the Justice Department fielded 4200 allegations that INS personnel had committed, among other infractions, sexual assault, drug smuggling, theft, and even murder.

Many of those complaints involve INS detention centers, where more than 20,000 people are locked up on any given day. The charges—which range from denial of toiletries to threats, beatings, and sexual abuse—are not so different from the sort of grievances filed by inmates in prisons. But INS detainees—who are not serving criminal sentences, but are held pending the outcome of deportation proceedings—are not guaranteed attorneys and, as they have not been sentenced, have no idea how long they might remain shut up in detention. (According to the INS, the average stay is 40 days, but thousands, including asylum seekers, languish for months, even years.) Many don’t understand English. It’s easy, then, for INS personnel to abuse detainees—to coerce favors with promises of release, warnings of transfer to harsher facilities, or threats of deportation, even when the officials don’t really have the power to make such decisions.

Not surprisingly, many detainees are too petrified to protest—which means the accusations on record may be only a small fraction of the actual abuses, advocates say. Madrazo was the exception. She confided in several officials after the first rape and within days filed a formal complaint. She also went directly to officials immediately after the second.

Madrazo’s allegations emboldened about a dozen of the roughly 100 women at the 500-bed, low-security facility to come forward with myriad tales of sexual misconduct, ranging from adolescent-style flirtations to downright assault. Women told advocates that guards rubbed up against them or fondled them during searches. They said guards and deportation officers propositioned them, often promising gifts of cosmetics or other contraband in exchange for sexual favors. The women described barely concealed encounters between INS personnel and detainees, from a guard masturbating while a detainee danced for him to ongoing affairs. Many who weren’t involved in such liaisons said they were threatened with deportation if they snitched. Two women got pregnant at Krome that year—one after sex with a guard, another after sex with a male detainee. All told, some 15 officers were named. Nine were transferred from Krome to desk jobs after the allegations surfaced. Krome’s reform-minded director abruptly resigned.

The complaints launched a federal investigation by the several agencies of the Justice Department—the FBI, the Office of Public Integrity, the Office of the Inspector General, and the U.S. Attorney’s Office. So far, it has resulted in two convictions. In the most recent, in October, former INS guard Clarence Parker pleaded guilty to engaging in a sexual act, which he said was consensual. When he was sentenced to three years’ probation in December, it was revealed that after Parker lost his job at Krome in the wake of the allegation, he was hired at a Florida facility for juvenile sex offenders. The Miami Herald reported that a Krome supervisor had given him a rating of “very good” on a job reference. The judge at his sentencing ordered him to resign his new post immediately, saying, “It’s like putting an arsonist in the fire department.”


The other man convicted was Lemar Smith, the guard Madrazo says raped her. Charged by federal prosecutors with two counts of felony rape and two misdemeanor counts of “sex with a ward,” and facing up to 42 years in prison, Smith pleaded guilty to the lesser charges. He was sentenced on July 24, 2001, to eight months in prison and a year’s probation.

The Justice Department refuses to comment on the ongoing investigation, but advocates for detainees fear that the government has stopped far short of uncovering—and rooting out—widespread corruption and abuse. For Cheryl Little of the Florida Immigrant Advocacy Center, which provides pro bono legal assistance to Krome detainees, “It’s déjà vu all over again.” In 1990, the FBI was called in after detainees swore complaints that guards at Krome routinely coerced sexual favors from them. Its findings were never disclosed and, as far as advocates know, no disciplinary actions were taken. Some names of INS employees cited by detainees a decade ago come up again and again in the recent complaints, yet these officers remain on duty.

In the meantime, Krome has stopped housing women altogether. As the investigation intensified, most of the women who gave testimony were released for their own safety, and in December 2000, all of Krome’s remaining female detainees were transferred to a local high-security prison called the Turner Guilford Knight Correctional Center, where some were put into solitary confinement. Amnesty International summed up the move in the title of a statement on the scandal: “Women Asylum Seekers Punished for State’s Failure to Protect Them.” Some witnesses to the alleged misconduct have been deported.

After she reported the second rape, Madrazo, too, was removed from Krome—to a psychiatric hospital where she was detained for two months in a ward for severely psychotic people. “Were they trying to say I was crazy?” she asks, her voice trembling. Madrazo prefers not to talk about the suffering of the other patients, but does allow how disturbing it is “when you are clear in your mind to be in a place where nobody is clear in theirs.” Even at the hospital, she’d be put in leg irons and handcuffs any time she wanted to go outside for some air. At least she was able to get her hormones and the psychiatrist there was “considerate,” she says. On July 24, 2000, in one of the INS’s famously mystifying moves, she was abruptly released. But to this day she has nightmares about “that monster” who assaulted her. She expects they’ll go away only when she feels she has done everything possible to defend her rights. “I need justice,” she says. “That’s all. I need to be respected as a woman.”

Madrazo, 36, was born to a middle-class family in Coatzacoalcos, a small coastal city in the Mexican state of Veracruz. The youngest of eight children, she remembers a “happy and beautiful” childhood—until she was about seven and “they realized I was kind of different.” But Madrazo had sensed since even earlier that “mentally I am a woman, though physically I was born a man.” She was constantly bullied by kids at school, and Madrazo’s own brothers tried to pound some machismo into her. Even her mother berated her: “Why do you want to wear those girlish clothes? Why do you have to move like that?”

Madrazo found some support from a local transgender hairdresser. “After school I would run away for a little while to see her,” she recalls. “I wanted to be like her.” But Madrazo could also see the men driving by, shouting insults and throwing things at the salon. “I don’t know how she had the strength,” Madrazo says. By the time she hit adolescence, Madrazo was plotting an escape from her town; she was also taking female hormones, which she could buy without a prescription at a pharmacy. At 15, she left Coatzacoalcos for good. Until she arrived in South Beach a decade later, Madrazo did not have a home again.

Mexico’s larger cities were a little easier to get lost in, but Madrazo was dismissed from job after job when bosses decided that the slender, 5-7 worker with long hair and tapered fingernails was just too unsettling, too wrong, too queer for what Madrazo calls “my very very macho country.” Still, she managed to save up the $500 she needed to get breast implants in Mexico City in the mid ’80s.


Soon after, Madrazo joined a traveling transvestite show, and lip-synched her way across Mexico, performing at town fairs and hotels. But even this troupe was expected to dress “normally” after the curtain came down. It wasn’t really a career, says Madrazo. “It was a place for us to hide and cry together, a place for us to have some kind of community.” And the harassment never ceased. In 1991, Madrazo crossed the border from Juárez to El Paso and immediately boarded a bus bound for Miami. “I had heard there was an open gay community there,” she says.

But Miami’s gay community is one of the most conservative in the country. Sure, some white, moneyed gay men hit the clubs in South Beach and hit on the Latino boys who hang out in them. But politically, there is little contact, much less common cause, between Miami’s gay Latinos and Anglos, and even less when it comes to the trans community. “Transgender Latinos face a lot of rejection from white gay men,” says activist Luisa Rondón of the nascent group Miami Acción Positiva.

Madrazo found that scraping by in South Beach was as tough as anywhere else. In the early ’90s, she was busted twice for soliciting—one charge she calls routine harassment that trans women often face, the other a measure of “how desperate I was.” Destitute and homesick, she decided in 1995 to return to Mexico to make one last attempt to “see if I could get a normal life in my country.” The answer was a swift and certain no. One friend from the troupe had died; another was wasting away with AIDS. Getting hired in a straight job had only gotten harder. She worked in stores for as long as they’d let her. In 1998, the beating that left the scar on her face propelled her across the border again. This time, she would try to become legal.

She had reason to hope. Immigration law had changed since she had first fled north. On June 16, 1994, then attorney general Janet Reno issued an order that directed immigration officials to recognize gay men and lesbians as a “social group”—a designation required for eligibility in political asylum cases. (The order responded to a 1989 case of a gay Cuban man, the first to be granted asylum by an immigration judge on the basis of sexual-orientation discrimination.)

Though transgender people were not explicitly named as part of that “social group”—nor as a “social group” of their own—in immigration courts around the country, transgender applicants were beginning to win asylum on the basis of sexual orientation or gender persecution. For instance, in 1997, a male-to-female transsexual from Peru was granted asylum because she was “taunted, humiliated, and physically attacked by her family, classmates, teachers, and strangers on the street,” and “arrested and detained [by the Peruvian police] for being a gay man.” And in a groundbreaking decision in 2000—albeit one that technically applies only locally—California’s Ninth Circuit granted asylum to Mexican Geovanni Hernández-Montiel, asserting that “gay men with female sexual identities in Mexico constitute a protected ‘particular social group’ under the asylum statute.” (The Ninth Circuit thus overturned a Board of Immigration Appeals decision that had suggested that Hernández-Montiel merely needed to alter his appearance—essentially, butch up—if he didn’t want to be persecuted.)

Indeed, after her first hearing, Madrazo received a letter from the INS informing her that she had conditionally been granted asylum. She merely had to be fingerprinted and go through some other checks. At a second hearing, she was told that the agency was having some doubts: Authorities were concerned that she had left the U.S. and come back, and they had also dug up the old soliciting misdemeanor. (“I am ashamed of it,” says Madrazo, “but do I deserve to be deported or raped because of it?”)

The INS told her she would have to attend a third hearing before a final decision would be made. Madrazo arrived at the hearing on May 4, 2000, carrying just a small purse. When the judge gave her the heartbreaking news that her request for asylum was denied, she left the courtroom to find two guards expecting her. “Come with us,” one said. For Madrazo, “It was the beginning of a big scary movie. What? Why? Me? What is my crime? They put handcuffs on me and I was crying all the way down the elevator and into the car.” According to Madrazo’s attorney, Robert Sheldon, detentions in cases like hers are extremely rare, even bizarre. “It was a total shock to us,” he says.


At Krome, authorities didn’t know whether to put Madrazo in the men’s dorm or the women’s. So they put her in solitary confinement. Isolated and distraught, she struggled to find “the light in my spirit” to keep from crumbling in her dank little cell. Ten days into her detention, Lemar Smith was put on duty near Madrazo’s cell. At 138 pounds, Madrazo felt intimated by the guard, who weighs, she figures, 300 pounds.

On Saturday night, May 13, she has detailed in the lawsuit claim, Smith came into her cell and closed the door: “He ordered me to take off my blouse and my brassiere. I asked, ‘Why?’ He responded firmly and in a commanding way, telling me to shut up and be obedient. Lost in terror, I decided to do what he said. He immediately ordered me to come closer and he forced me down on a chair that was stuck to a table next to the wall. He pulled down his zipper and took out his penis, already erect. He took me by my back, he tightly held my neck and pulled my hair and he ordered me to perform oral sex. I couldn’t. He told me not to vomit, took me by the neck, and shoved me against the wall, threatening me, saying that I knew what would happen if I said anything. Immediately afterwards, he turned me over, pulled down my pants, and painfully sodomized me for about 15 minutes until he heard keys and put his penis in his pants.” (Smith was not available for comment and his attorney did not answer calls. Though Smith never testified during hearings on the allegations, his attorney maintained that the sexual relations were consensual.)

“My fear was incredible,” Madrazo recalls, “I didn’t know if anybody would help me or protect me—nobody had given me simple human treatment since they took me there. But I decided I had to fight. I had been punished my whole life since I was little and that made me emotionally strong.”

After a few days, Madrazo confided about the rape to a Krome psychiatrist and to a representative from the Mexican consulate, who made a visit to Krome. And with their support, she made an official complaint to a Krome captain on May 20. But the next night, Smith brought her dinner tray to her cell. Later, he returned. Says Madrazo, “He did it again.”

“I wanted to scream, but I couldn’t,” Madrazo recalls. “He told me if I say anything, I’m gonna pay. I felt so angry, so impotent. He called me a bitch and said I deserved it, like he was glad.”

This time, Madrazo went to the doctor first thing in the morning, and told what had happened. A Krome official asked her, “How are you going to prove it?” And she gave a ready answer: “I have his sperm.” She had kept her soiled underwear as evidence.

Sheldon demanded Madrazo’s immediate release, but she was taken to the psychiatric hospital. Weeks later, an immigration judge granted her release—on a bond of $15,000, a sum far beyond Madrazo’s means. She remained in the institution while the investigation lumbered on. The FBI had to order Smith to comply with a blood test, but the DNA matched. “That,” says attorney Sheldon, “is the only reason they haven’t deported Christina.”

On August 31, 2000, a month after Madrazo’s July release, investigators came up with the indictment. Last May, Sheldon was shocked again when prosecutors let Smith cop a plea. Sheldon suspects that the government didn’t want the embarrassment of having to explain why they’d allow a guard to keep watch over a woman he’d raped a week before—better to agree that the sex was consensual. U.S. Attorney Scott Ray, who prosecuted the case, discounts the theory. “I just didn’t have proof beyond a reasonable doubt,” he says.

What raised the doubt? Some of Madrazo’s semen was found on a towel in the bathroom of her cell. While involuntary ejaculations are certainly possible even during a rape, Ray says that Madrazo had no answer for why her sperm would be there, and that raised questions about her credibility. Sheldon scoffs at this reasoning. Madrazo wishes she could laugh at it: “What does it have to do with anything?”

Ray agrees that “there’s no such thing as consensual sex” between a detainee and a guard. “That’s why it’s a crime.” And he also figures that Madrazo has a good chance of winning a settlement under the tort claims act for the distress she suffered—the burden of proof is far lower in such civil claims than the “beyond a reasonable doubt” standard required in criminal cases. Madrazo and Sheldon filed such a claim in May 2000, demanding $1 million, but the government’s only reply was to ask, in a letter of September 14, 2001, for further explanation of the damages they were seeking—and whether she would settle for less. When such a claim is not dealt with, aggrieved parties may sue, as long as they file within two years of the alleged crime. So that is what Madrazo and Sheldon are ready to do.


Sheldon knows that they are about to go up against “the biggest and most powerful law firm in the world.” But both are determined. Says Madrazo, “I can’t forget about it. I can’t move on with my life unless I know we tried to get justice.” Now working part-time doing alterations for a clothing shop, Madrazo knows, too, that the fight will not only be hard. It will be ugly. “Transsexuals have the worst reputation,” she says. “They will try to find everything bad about me and use it against me. They will try to destroy me.”

Sheldon acknowledges the point, but sees the case a little differently. True, none of this would have happened to Madrazo if she weren’t transsexual. But, he says, “I see it more as an immigration issue than as transsexual issue. Somebody comes to the U.S. and asks for asylum, and we put that person in detention? That innocent person seeking asylum? Where she gets raped? Immigrants just can’t be treated that way.”

This is the third of an ongoing series investigating the INS.

Contact the author:


Kids in Captivity

Davinder “Jimmy” Singh was only 14 in July 2000 when his father paid a smuggler to take him from his village near New Delhi to a new life with his aunt and uncle in America. It took him about 16 hours to fly from Bombay to New York and a year and a half to reach his relatives in California. In between, he spent nearly two months in a guarded hotel room where he was sometimes handcuffed to the bed at night; three months in a shelter where he threw up every day from being forced to eat everything on his plate, including the meat, which had never been part of his Sikh diet; and a full year in a youth detention center, where he says he was bullied by the larger boys and belittled by the staff. His host for this ordeal was America’s Immigration and Naturalization Service (INS), which nabbed the undocumented boy upon his arrival at JFK and detained him as his request for asylum crawled through the system.

While the post-9-11 roundup of Arab and Muslim immigrants has put INS detention in the spotlight in recent months, the plight of the nearly 5000 children locked up by the system each year remains one of America’s ugliest secrets. Their average age is 15; the vast majority are boys. Senate subcommittee hearings on a proposed bill to take the responsibility for such children away from the INS are scheduled for Thursday.

According to INS spokesperson Karen Kraushaar, when minors enter the U.S. illegally—usually for the same reasons as adults, seeking democratic freedoms and opportunity, fleeing persecution or war—the government takes great pains to locate U.S. relatives and usually manages to turn kids over to them within three days. In the thousands of instances in which such efforts fail, though, the agency places children into custody in one of some 90 facilities around the country—usually campus-like shelters run by nonprofit agencies, but sometimes high-security prisons that incarcerate U.S.-citizen juvenile offenders. Meanwhile the immigration courts consider whether the child can stay in the country or must be deported. Typically, the process averages a little over a month, says Kraushaar, but it can drag on much longer if there’s trouble finding a sponsor or the agency fears that the purported “relatives” are really “snakeheads,” smugglers who will sell the kids into indentured servitude or prostitution.

But the system often breaks down, immigrant advocates charge. More than a third of the detained youngsters wind up like Jimmy, languishing in untenable situations for months, and sometimes for more than a year. Many of these children, already lonely and fearful, are further isolated because there’s nobody around who speaks their language. During most of his detention, Jimmy communicated in Punjabi only during the two five-minute phone calls he was allowed to make to his relatives each week. Worse, more than half the kids don’t have attorneys, despite the labors of pro bono projects around the country, so they often go into hearings with little understanding of what is happening and no knowledge of their legal options. Those with counsel are often transferred to facilities far away from their lawyers.

In one of the most egregious cases currently, Alfredo López Sánchez, a 16-year-old Mayan from Guatemala, has been shuttled from one facility to another seven times over the last two months, sometimes with his ankles shackled and his wrists handcuffed to a chain around his waist. Alfredo arrived in June, seeking asylum from domestic abuse so severe that a psychologist has diagnosed him with post-traumatic stress disorder. He was placed in a 56-bed shelter in Miami popularly known as Boystown. Operated by Catholic Charities under contract with the INS (to the tune of $1.9 million a year), the residence looks like a low-rent boarding school. (Indeed, kids attend school there and begin each day reciting the Pledge of Allegiance.)

Claiming that Alfredo might be planning to run away, in November the INS transferred him to Monroe County Jail for “his own safety,” though the jail’s contract with the INS to hold immigrant detainees explicitly excludes juveniles. After Alfredo’s attorney, Christina Kleiser of the Florida Immigrant Advocacy Center, complained, the INS moved him to a juvenile shelter in Leesport, Pennsylvania, 1200 miles away from one of the few interpreters of his rare native dialect, Southern Low Mam. In December, the INS transferred Alfredo back to Boystown for a day, then moved him to a Miami hotel, then back to the Monroe County Jail, which refused to house him, and then back to the hotel, where for about three weeks he sat in a guarded room all day in a weird sort of house arrest. In early January, the INS brought him back to Pennsylvania, then early this month back to another Miami hotel so he could attend a scheduled hearing there. It took a federal restraining order to keep him in Miami as his case goes forward.


Complaints about such seemingly arbitrary and pitiless actions on the part of the INS have been leveled for years by children’s advocates, human rights groups, and internal government reports. A 1985 class-action suit, Flores v. Reno, challenged, among other things, the often lengthy terms and harsh conditions of minors’ confinement; its settlement in 1997 after 12 circuitous years of appeals that went all the way to the Supreme Court established national guidelines, requiring, for instance, that children be detained in the least restrictive settings possible.

But a report this past September by the Office of the Inspector General found that the INS was placing too many kids in high-security juvenile prisons, needlessly using restraints on them, and in other ways failing to live up to the 1997 settlement. While the report noted “significant progress,” it found persistent problems that could have “serious consequences for the well-being of the juveniles.” Of the 4136 unaccompanied minors held for more than 72 hours in fiscal year 2000, the report detailed, more than a third did at least some portion of their detention in “secure” facilities—that is, in prisons. Having committed no offense other than to seek refuge in the U.S., they were locked in behind bars and razor-wire fences, under the control of guards trained to take charge of criminals.

Now, as the INS considers an agency-wide structural overhaul, separating its service and enforcement branches, plans to completely revamp its juvenile department are on the table at last. In a speech in early February, INS commissioner James Ziglar asserted, “We need to do better protecting unaccompanied minors,” a sentiment advocates regarded as sincere, if a massive understatement. Ziglar announced the creation of a special Office of Juvenile Affairs that will report directly to him instead of being housed in the division of detention and deportation.

The bill scheduled for hearings Thursday, the Unaccompanied Minor Protection Act, introduced by California Democrat Diane Feinstein, is far tougher. First, it would guarantee children attorneys and guardians. What’s more, it would place the care of these kids in a new office outside the INS, staffed by child welfare professionals. Indeed, some advocates wonder whether Ziglar’s administrative reform is a preemptive dodge to keep undocumented children in the INS’s control.

Supporters of the Feinstein legislation say it goes a long way toward resolving what they have long regarded as a damaging conflict of interest in the agency: “The INS is both prosecutor and protector,” explains Wendy Young of the Women’s Commission for Refugee Women and Children. “They have custody of the children and must serve their best interests; at the same time it is their job to deport them.” The INS’s Kraushaar rejects this logic: “We don’t have an interest in any of the outcomes other than to make sure the juvenile enjoys the full consideration under the law and arrives in a timely fashion for his or her hearings.”

Official policy, perhaps. But kids don’t see it that way. Those who spoke to the Voice might have expressed appreciation for “one nice guard” or “a lady who helped me in the shelter,” but all said they felt intimidated, punished, confused, and upset, or “treated like a criminal.” And there’s little claim of neutrality from INS employees in the field. A deportation officer in the mid-Atlantic region, speaking on condition of anonymity, expressed pride in being able to “help America keep liars who aren’t supposed to be here out of the country.” At JFK airport, the dentist who administers a controversial X-ray test to determine the age of those it doesn’t believe to be under 18 regards himself as defending the border against “drug dealers, human traffickers, and terrorists.” He relishes what he calls “the forensic chess game. People come in with false documents, and I have the dental X rays to checkmate them.”

While some migrants may indeed come under false pretenses, they can also get caught up as pawns in a larger game. The supervisor of the juvenile division in Florida, for instance, brazenly told a judge at a hearing in Alfredo’s case two weeks ago that he would not release the boy to any foster care programs because he was waiting for Alfredo’s brother, living illegally in the U.S., to come claim him and be put into deportation proceedings himself.

In a more alarming example, zealous INS officers recently deported 13-year-old Isau Flores-Portillo, a street kid from Honduras, even though his asylum appeal was still pending. Though the INS won’t comment on specific cases, attorneys for Isau believe he faced torture or even death back home. They cite the reputation of Central American police for clearing the streets of homeless kids by simply murdering them in a process known as limpieza social—social cleansing. According to a U.S. State Department human rights report, in 2000, “Honduran security forces were suspected of an estimated 200 extrajudicial killings, many involving persons under 18.” The INS has moved to dismiss Isau’s asylum case because the applicant is no longer in the country.


Jimmy was luckier. During his 18 months in detention, his case was picked up by a special pro bono project at the tony D.C. firm Latham and Watkins, which has an attorney who speaks Punjabi. The lawyers managed to get affidavits from neighbors in his village who testified to the relentless abuse Jimmy suffered at the hands of his stepmother, and in December, his asylum request was granted. Not only is the INS appealing the decision, it wanted to keep Jimmy in detention during the appeals process. Attorneys won his release earlier this month.

From his new home in California, Jimmy said he would have run away from home no matter what, but, he added, “I would live on the streets in India rather than go through detention again.” And that from a child who spent the bulk of his time in Berks County Youth Center in rural Pennsylvania, a low-security shelter without bars or barbed wire, where there are classes each day and soccer games. (Still, kids held there say they are threatened with being moved to the high-security prison wing down the road if they misbehave.)

But for an adolescent like Jimmy, such benefits were outweighed by the loneliness, boredom, and persistent nightmares. Only since arriving at his aunt and uncle’s has he been enjoying what most teenagers take for granted: enough time in a shower to rinse off the soap, pouring himself a glass of juice when he feels thirsty, being allowed to take a pen and paper into his room.

After all, these are kids. The restrictions of detention present special emotional hardships for teenagers. In eastern Washington State, for instance, INS kids are held outside Spokane at Martin Hall, a maximum-security juvenile prison with strict rules that apply equally to the delinquent citizen kids and the INS detainees: No more than five sheets of paper and two family photos in a cell, the handbook asserts. When going to a meal or recreation, it instructs, “come out of your room, close your door, stand by your door facing forward with your hands behind your back until asked to step into the middle of the hallway. . . . Do not talk to anyone.”

A Jamaican teen who didn’t want her name used spent a month and a half in the high-security wing at Berks. She reports she saw kids thrown and pinned to the ground by guards for the crime of lifting an arm. But what was worse for her was suffering the acute adolescent embarrassment of having to dispose of sanitary napkins in full sight of the boys because there were no trashbins in the bathrooms. In Miami, FIAC attorneys wanted to give a donated Christmas present of a jigsaw puzzle and art set to Alfredo while he was confined to the hotel room with nothing to do and no one who spoke his language. According to the INS, such items are “contraband.” Alfredo got no gifts.

The underlying trouble, says Chris Nugent, director of a pro bono immigrant project at the American Bar Association, is that the INS regards these kids “as detainees first and as children second. That’s what needs to be reversed.”

Yet sometimes the INS doesn’t recognize them as juveniles at all. Adults have narrower avenues of relief and face more severe detention conditions than those under 18, so undocumented migrants have a good motive for trying to pass as a minor. The INS says that it must be especially vigilant to keep adults out of shelters that house children, so when people give birth dates that seem doubtful, they are sent for the X-rays that show wisdom teeth growth and whether the ulna and radius bones have fused in the wrist. Advocates say the tests are unreliable and given far too much weight over documents, psychiatric evaluations, and other evidence in cases against young people who genuinely need help.

According to Dr. Robert Trager, the dentist with offices at JFK and LaGuardia airports who has conducted some 1500 such tests for the INS, “[Undocumented travelers] try every trick in the book to get in here, and you’ve got to feel sorry for them, but I can’t let personal feelings get in the way of science.” In at least 90 cases out of 100, he finds the patient to be lying, and he claims the tests have an accuracy rate of more than 96 percent.

But Dr. Herbert Frommer, director of radiology at the New York University College of Dentistry, says that “Dr. Trager’s position has no scientific validity.” In an affidavit, Dr. Frommer cites a “wide variation in the age at which third molars erupt in the mouth” because of differences in “race, gender, and ethnic origin,” among other factors. Orthopedists regard the wrist-bone test as equally imprecise. Still, these tests are the best scientific tools the INS has in its effort to piece together what Kraushaar calls the “mosaic” of a person’s identity. “The INS is responsible for making sure we know exactly who is seeking entry to the U.S. and verifying their ID includes age,” she explains. “What if a terrorist who was 19 said he was 16 and an orphan and the story didn’t check out, but we released him and he went and blew up a building? Would it be his attorney that would take the fall? I don’t think so.”


Thus, Huai Chun Zheng—or “Danny”—has been sitting in an adult jail in Georgia for more than two years. The INS X rays pegged him as over 18, though he claims he was only 15 when he was apprehended at a port in Savannah after spending a week under the deck of a ship from China. He applied for asylum, and as his case inched along, he whiled away what should have been vital years “mostly just sitting in my room all day.” Between his fear of being returned to China and the noise of the more than 20 men in his dorm, he barely sleeps, he said by phone through an interpreter last week.

His asylum petition has been denied, and Danny has been issued a final order of deportation, but he is still holding out hope that, somehow, the INS will release him to his cousins in New York and that he’ll be able to fulfill his dream of going to school. His lawyer, Rhonda Brownstein of the Southern Poverty Law Center, managed to track down a notarized birth certificate for Danny, but the INS doubts its authenticity because it lacks fingerprints. “Do your birth certificates in America have fingerprints?” Danny wants to know. Yet even by the birth certificate’s count, Danny turned 18 last month, so the law that would permit him to be released to relatives no longer applies. To date, China has not produced the travel documents needed for his deportation, so Danny sits in limbo, waiting—but he’s not sure for what.

Mohamed Boukrage has no relatives to claim him. Orphaned at age 10 in his native Algeria when a car bomb blew up his parents and sister, he says he went to live with an aunt who threw him out, concerned that his father’s reputation as a “traitor” for dealing with French businessmen would harm her own family’s standing. So Mohamed stowed away on a boat to France, then made his way to Italy, where, for about four years, he picked up menial jobs and squatted in abandoned buildings. In October 2000 he joined some other workers on a boat he thought was going to Canada, but he was snagged by the INS when it docked in Newark. They took him right to Dr. Trager’s office at the airport, where he was pronounced to be at least 18 years old; Mohamed says he was 16.

In May an immigration judge rejected Mohamed’s asylum claim, saying that his story lacked convincing detail. His pro bono lawyer, Erin Corcoran of the Hebrew Immigrant Aid Society, appealed, noting that Mohamed was only eight or nine when his family was killed: How much detail could he be expected to remember? Corcoran’s final request for reconsideration was denied in January.

All the while, he has been held in an adult INS detention center in Elizabeth, New Jersey, the fluorescent-lit former warehouse near Newark Airport, where he told his story from a cold visitor’s room in late January. He passes the interminable time sitting in his dorm reading the Koran, he said. He gets an hour’s exercise each day in an enclosed courtyard, so he has not been outdoors in almost a year and a half. Acne runs rampant over his dimpled cheeks.

Speaking through an interpreter, Mohamed said he’d like to learn English, but unlike the juvenile shelters, the adult detention centers don’t offer any classes. His vocabulary is limited to the phrases he hears from guards: “Get in line.” “Do what I tell you.” “No talking.”

When he is perceived to have broken a rule—like when he got into a fight he says started when a larger, older detainee made a sexual advance—he is sent to solitary confinement, where he is denied the meager communal privileges of exercise and prayer.

According to a psychiatric evaluation by Dr. Alice Kross Frankel, Mohamed is “suffering from both depression and traumatic stress reactions” that are exacerbated by his imprisonment and “altogether inappropriate placement.” He was wetting his bed when he first arrived at Elizabeth. He still has nightmares. Dr. Frankel recommended Mohamed’s prompt release to the nonprofit youth home Covenant House, which has agreed to take him in.


Meanwhile, Corcoran is racing against the clock to try to win the only relief left: “special immigrant juvenile status,” a sort of junior green card for youngsters who are abandoned, abused, or neglected. But even to be considered for this status, Mohamed has first to be recognized as a juvenile, so Latham and Watkins lawyers are preparing a federal suit claiming that the unreliable age determination test violates Mohamed’s due process. A hearing is likely later this week.

If they prevail, the INS will have to let Mohamed’s case be heard at family court, which has jurisdiction over who qualifies for this special status. But even if family court says yes, the INS has been known to take so long to process such claims that the young immigrants “age out”—that is, they turn 21 and become ineligible before they can secure the benefit. Mohamed isn’t thinking about these legalistic twists. But he is thinking about the future. “I’m still young and can be educated,” he said, expressing an interest in architecture. He added, “And I want a place to belong to.”

Research assistance: Xiaoqing Rong

This is the second of an ongoing series investigating the INS.


War at the Door

The Circle Line boat that ferries tourists to Ellis Island slows to a crawl as it passes the Statue of Liberty, giving passengers plenty of time to train their video cameras on that beloved beacon of bounty to those old huddled masses. The engine churns, the water sprays, and the looming green lady grows larger and larger. You can’t help but provide your own private soundtrack. It hardly matters whether your imagination plays Irish ditties, Mexican danzones, Klezmer doynes, or Korean drums: sentiment gushes in, priming you for the Ellis Island museum, which invites you to envision yourself as a turn-of-the-last-century immigrant who has just disembarked from third-class steerage. And you do.

Though the exhibit doesn’t shy away from chronicling the xenophobic currents in American history or the humiliations that greeted those streaming to these shores, it manages to avoid any references to recent debates over immigration or to the myriad snafus of the contemporary system. In an official introduction to the site, for instance, National Park guide K.J. Finley, dreadlocks bouncing from beneath her ranger hat, explains why you might have chosen to make the arduous journey to America in, say, 1905: “You’re a peasant and you don’t want to die a peasant,” she says. “You need a job and you heard there were jobs here.” Never once are you called an “economic migrant,” which in today’s derisive discourse would separate you from a more “legitimate” immigrant, someone fleeing political persecution. These days, new arrivals are slapped into the same categories as welfare recipients—as genuinely oppressed or merely poor, “deserving” or “taking advantage.”

Nonetheless, the inspectors who stood behind the high little desks in the great hall of Ellis Island were the first enforcers of America’s abidingly ambivalent immigration policy. The forebears of today’s thousands of Border Patrol agents, deportation officers, and other functionaries of the ever expanding Immigration and Naturalization Service (INS), those bespectacled, starch-collared men were charged with excluding from entry, first, Chinese people, and, more generally, as 1880s law put it, “any convict, lunatic, idiot or any person unable to take care of himself or herself without becoming a public charge.”

Since then, the history of U.S. immigration policy can be read as the expansion of the list of those who must be refused: 1891 legislation added polygamists and “persons suffering from a loathsome or a dangerous contagious disease”; 1903 law added anarchists. By 1921, baldly racist forces, riding the crest of the Red Scare, won quota restrictions, limiting immigration from any country to 3 percent of its representation in the U.S. according to the 1910 census. Later versions of that act choked off immigration from Southern and Eastern Europe; immigration from Asia had already been barred. And the story of Ellis Island as a gateway to the Promised Land was over.

But the contradictions in American policy—and the romantic way in which we insist on viewing that policy—were not. From the day of the first post-Civil War law about whom to let in and how to do it, the agency charged with carrying out immigration policy has had a paradoxical task: to welcome strangers and to shun them. It must, on one hand, defend American jobs against cheap immigrant labor and, on the other, enable business to import low-wage workers; embrace the needy and enterprising and “protect” the nation’s founding Anglo-Christian culture and values; succor the refugee and slam the door on the rogue.

This tension tugs at the core of America’s founding ideals. Even as the Declaration of Independence listed among the many “Injuries and Usurpations” of the British king his obstruction of immigration to America, Benjamin Franklin panicked about an 18th-century influx of “Palatine Boors,” and demanded to know why “Pennsylvania, founded by the English, [should] become a colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them?”

How from the tangle of clashing mandates can today’s INS function coherently? By many accounts, it doesn’t. Charged with facilitating immigration as well as containing it, the INS mirrors the schizophrenia of U.S. foreign policy, and many agree it is currently failing on both sides of its mission. And that’s not only because it is, by the government’s own report, a staggeringly inept bureaucracy that remains unaccountable to the public and even to the Congress that sets its agenda. It’s the paradigmatic American agency, embodying the nagging question of the liberal state: Is government’s role to provide services to people—or to police them?

In the wake of September 11, the stakes for the INS’s striking the right balance are as high as they have ever been. Today, one in five Americans is first generation or foreign born. Even as the INS must reinforce its shields against those seeking to cross the border to do the U.S. harm, it must preserve the openness to the rest of the world that has forged the nation’s identity. But the blundering, bunker-minded agency may not be up to the task. This week’s look at the INS launches a periodic series of articles that will follow the agency at this critical moment, examining practices in the context of shifting policy. The INS’s new commissioner, James Ziglar, recently said that he liked his job because “it gives you the opportunity to shape the future of the country.” Given that he reports directly to zero-tolerance attorney general John Ashcroft, it’s fair to wonder: Will the glory of American promise celebrated at Ellis Island still be recognized in the kind of country the INS is shaping?


The INS has emphasized the enforcement side of its program at least since the 1950s, according to historian and University of California law professor Bill Ong Hing, pouring as much as three-quarters of its resources into such activities as border patrol, airport inspections, smuggling investigations, and detaining and deporting those lacking legal status. The INS has more armed agents than any other federal agency, including the Bureau of Prisons and the FBI. (And according to an Office of the Inspector General report last year, it couldn’t find 539 of its weapons. At least six turned up after being used in crimes. Nor could the INS account for up to 81,000 other items—among them vehicles, computers, and aircraft, valued at between $68.9 million and $107.6 million.)

In its 110-year history, the INS has been bounced around government departments like an unruly foster child. It resided in the Treasury Department until 1903, when it was transferred to Labor. In 1940, with growing wartime concern about immigration as a national threat—and Labor Secretary Frances Perkins uninterested in turning the Labor Department into a security agency—it was moved to the Justice Department (doubling in size from 4000 to 8000 employees), where it has resided since, directly under the charge of the attorney general.

Today, more than 35,000 people work for the INS in a Byzantine structure of regional districts and Border Patrol sectors, presided over by directors in what some critics call alarmingly autonomous “fiefdoms.” Indeed, the Inspector General report cited “a significant disconnect between what INS Headquarters believes is occurring in the field and what actually happens.” California Congress member Zoe Lofgren says she’s expressing bipartisan accord when she calls it “the worst performing agency in the government.” Such incompetence has consistently been rewarded with mushrooming subsidies: The INS budget increased by 220 percent between 1993 and 2001.

September 11 brought many of the bungles and brutalities to the fore: on one hand, sieve-like screening processes that let visa applicants on terrorist-watch lists get through; on the other, a vast and arbitrary detention system that can “disappear” people who have committed no crime. But the agency has not been called to answer heightened demands for accountability. On the contrary, it has acquired more authority and more money as it has rushed to reinforce the border and to hunt down and detain visa scofflaws of Arab and Muslim descent. In his budget proposal early this month, President Bush requested a 14.5 percent increase, raising the INS allotment from $5.5 billion to $6.3 billion—almost all of it earmarked for enforcement measures.

Security needs notwithstanding, THE fortress fervor has not only led to abuses of civil rights, but also compounded the already catastrophic overload on the service side of the INS. As House Republican Darrell Issa has said, “The legal immigrant gets screwed by the failure of this organization.” Between 1994 and 2000 the number of applications for green cards, citizenship, and other benefits increased nearly 50 percent to more than 6 million, overwhelming the agency. Already buckling under the weight of a backlog of 4 million applications, INS staff have clocked 70,000 hours of overtime for each pay period since September 11.

Lines wind around the block at offices where a naturalized citizen applies for a visa for his mother back in, say, Karachi, or an undergraduate requests an extension to finish a course of study, or a green-card holder files a change of name after getting married, or a longtime resident signs up for citizenship. They can wait six hours to turn in the paperwork—and then for months, even years, for the result. By the government’s own calculation, it can take almost four years for citizens to sponsor the immigration of a relative. And more likely than not, the clerks and officials they encounter will be rude, suspicious that even the most routine applicants have cheated their way into the country.

Those fleeing persecution and requesting asylum here may be hurt most by this miasma of mistrust. Thousands end up in detention—even in high-security prisons—while their claims crawl through the INS’s overburdened courts. T.J. Mills, who served as an asylum officer from 1993 to 2000 (and now works as an attorney assisting immigrants), says he joined the INS to help those who sought refuge in America, but found that the climate was so hostile to applicants that he couldn’t take it. “Most of the supervisors were convinced that 90 percent of asylum seekers were lying,” he recalls. “It was absolutely an enforcement mentality. And now, since September 11, it’s gotten worse.”


Commissioner Ziglar, who stepped into the job just weeks before 9-11, recently announced plans to overcome the INS’s existential crisis by splitting it into two distinct departments: service and enforcement. Such a division has been recommended for decades, and in addition to Ziglar’s administrative scheme, various Congress members have produced legislative proposals for restructuring the agency. Though the plans differ in significant detail, Washington is enjoying what Migration Policy Institute codirector Demetrios Papademetriou calls the “New Immigration Consensus.” But the overhaul won’t be complete until the end of 2003—and there’s no guarantee that the new arrangement won’t starve the service side of funds, or that it can repair the management malfunctions.

The parallel justice system needs a similar shake-up if the reforms are going to be meaningful, according to the very judges who hear its cases. Immigration matters do not go through the country’s criminal or civil system, but through special courts within the Justice Department, so the attorney general is boss to both prosecutor and judge. He has the authority to override judges’ discretion and even to reverse decisions. That, says Susan Martin, director of the Institute for the Study of International Migration, is like the police commissioner being able to overturn a verdict he doesn’t like in a criminal case.

Hoping to capitalize on restructuring fever, the union representing the country’s 220 immigration judges is calling for a complete split from the Justice Department. Meanwhile, Ashcroft recently announced plans that would curtail immigrants’ rights even further, by limiting the scope of appeals they are allowed. With that, he would reduce the number of judges on the Board of Immigration Appeals—a step that may be used to pick off particular judges Ashcroft regards as too liberal.

Then there’s congress. No matter how well-structured the INS might become, it can’t help but falter as long as it has to enforce extreme and often contradictory laws.

There’s no better example than the huge increase in mandatory detentions called for in the 1996 package of draconian immigration reforms passed by the Gingrich Congress in the era of California’s anti-immigrant Proposition 187. Like the Rockefeller drug laws in New York, these new rules boosted the swelling incarceration industry. With little preparation and less capacity, the INS quickly became the jailer of the country’s most rapidly expanding prison population. Last year it detained more than 180,000 people, three times the number a decade ago. Little surprise that allegations of abuse abound.

Too bad lawmakers often don’t understand how the principle they want to assert in legislation will affect actual people. Many Congress members have expressed amazement and horror when learning of cases like that of an elderly Cleveland woman who suddenly found herself in deportation proceedings (which were abandoned after public pressure) because of a couple of shoplifting convictions in the early 1960s; they simply hadn’t reckoned the real-life implications of the 1996 tough-on-crime directives that “criminal aliens” be deported without judicial review.

Before September, momentum was building for “Fix ’96,” as the lobbying effort to roll back some of the excesses of the six-year-old legislation was called. That endeavor might not be dead now, but, says Susan Martin, “it’s certainly in a coma.”

Ashcroft is making the most of the moment. But like his shrinking the Board of Immigration Appeals, most of his streamlining proposals really work, says Papademetriou, “to accomplish some things that the conservative wing of the Republican Party has wanted to accomplish all along: to have as truncated a process to deport people as possible. It’s returning to the spirit of the 1996 legislation.”

But most of the country does not seem to share a renewed spirit for the restrictions of the mid ’90s. Despite post-9-11 fears, and a generally supine acceptance of civil liberties restrictions in the name of fighting terrorism, an expected public backlash against immigrants has not been widely inflamed—despite efforts to ignite one by organizations like the Federation for American Immigration Reform, which issued a press release on September 12 blaming “open-border advocates” for the terrorist attacks. Rather, argued Frank Sharry of the National Immigration Forum at the group’s annual conference earlier this month, there’s a growing public understanding of immigrants’ contributions to the cultures and economies of America, and thus less fertile ground for nativist initiatives. A Proposition 187 wouldn’t have a prayer today. Indeed, the Senate two weeks ago voted to restore food stamps to legal immigrants who have been in the country five years.


When the Ellis Island ferry turns back toward the city, it heads straight into the harbor, providing a full frontal view of the wounded Manhattan skyline. The people packing the deck look up silently for a moment, then go back to snapping photos and chatting away in Mandarin, Spanish, Norwegian, and Czech. Asked where they come from, the tourists proudly reply: California, Nebraska, Tennessee, and Maine.

This is the first of an ongoing series of articles investigating the INS.