Lawsuit Challenges INS Refusal To Allow Detainees to Depart
Dozens of aliens detained in Hudson and Pasaic Counties, New Jersey, seek voluntary departure, or have received final orders of removal from immigration judges and are ready to be removed. But the INS issued a rule on April 18, 2002 that maintained secrecy and in effect prevented the departure of any of those detainees. This INS rule has triggered a suit by the American Civil Liberties Union of New Jersey (ACLU-NJ).
Why on earth would the government object to the removal of the aliens it has placed under removal proceedings and has wished to remove? The answer, apparently, is that 9/11 has clouded the judgment and sense of proportion of the Department of Justice and its chief, Attorney General Ashcroft. During the Cold War, a communist was imagined behind every file cabinet. After 9/11, a terrorist is imagined in every out-of-status alien, or at least every out-of-status alien who is Muslim, and has the misfortune of having been born in a country where Al Queda has put its hooks.
By a rule issued April 18, 2000 INS Commissioner Ziglar has justified the absolute secrecy concerning the detainees: “Specific aliens detained under administrative arrest warrants may possess significant foreign intelligence or counterintelligence information that is sought by the United States. The disclosure of those aliens’ detention and the location of their detention could invite foreign intelligence activity counter to the best interests of the United States.” Does the INS intend to detain these overstays indefinitely merely because they “may” possess information? Hasn’t it had enough time since 9/11 for discover whether they have any such information, or whether this is an illusion nourished by the authorities?
The background to the current focus on the wish of detainees to depart from the United States and go home is the lawsuit filed by the ACLU of New Jersey on November 28, 2001. That suit sought to know the identities, ages, birthplaces, nationalities, dates of entry (into the county jails), and reasons for confinement of the aliens detained from September 1-November 28, 2001 in the jails in Hudson and Passaic counties, and whether the detention was pursuant to an agreement or contract with a federal agency. The plaintiffs based their complaint on state law, which requires that the names and dates of entry of inmates into county jails be open to public inspection and copying. The defendants refused the request, alleging an agreement between the jails and the federal government.
On March 27, 2002 a Superior Court Judge, Arthur D’Italia, called the secrecy of the detentions “odious to a democratic society,” and set a deadline for the release of the information sought by the plaintiffs. The decision of the Superior Court was appealed, and on April 19, 2002 the Appellate Division ruled that the court’s decision was to be stayed pending the appeal, provided that the INS maintain the status quo and not move the detainees pending appeal without their consent. The government is reading this as an order not to allow voluntary departure or removal even for those detainees who have requested it, and thus, according to the plaintiffs, “the government is using the court’s order to cause harm to the very people the order was issued to protect."
Some founding father said that “eternal vigilance is the price of liberty,” and this seems to be the motto for monitoring the harsh treatment of immigrants in the wake of 9/11.
About The Author
Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at Carl.Baldwin@worldnet.att.net.
He has written a book on immigration law, called "Immigration Questions and Answers," Allworth Press, 2002. The book, which contains essential background information about how the immigration law works, can be ordered online from Allsworth Press at: www.allworth.com/Pages/SC_BL.htm.
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