NEW LAW PUTS IMMIGRANTS ON THE EDGE SOME WAIT IN U.S. JAILS, REJECTED BY THEIR HOMELAND

The Plain Dealer
Cleveland, OH
Aug 30, 1999

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Authors: MICHAEL SANGIACOMO PLAIN DEALER REPORTER
Pagination: 1B

Abstract:

CORRECTION:****PUBLISHED CORRECTION**** The following published correction appeared on August 31, 1999: As of yesterday, there were seven deportees in the custody of the Immigration and Naturalization Service in Ohio who are being held indefinitely because their countries of origin will not accept them. Their cases are reviewed every six months by the INS caseworker who forwards recommendations to the INS program manager, who reviews the cases and forwards his recommendations to acting District Director Mark Hansen. Hansen decides whether the detainee should be released. Yesterday a total of 52 deportees were in custody in the state. A story in yesterday's paper incorrectly included the immigration judge in the INS review process.

(Copyright (c) The Plain Dealer 1999)

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E-mail: msangiacomo@plaind.com Phone: (216) 999-4890

CORRECTION:****PUBLISHED CORRECTION**** The following published correction appeared on August 31, 1999: As of yesterday, there were seven deportees in the custody of the Immigration and Naturalization Service in Ohio who are being held indefinitely because their countries of origin will not accept them. Their cases are reviewed every six months by the INS caseworker who forwards recommendations to the INS program manager, who reviews the cases and forwards his recommendations to acting District Director Mark Hansen. Hansen decides whether the detainee should be released. Yesterday a total of 52 deportees were in custody in the state. A story in yesterday's paper incorrectly included the immigration judge in the INS review process.

They came to America seeking a share of the good life - the newest immigrants living as permanent residents with a cherished green card.

They raise families, live in the suburbs and go to work. All trying to enjoy their new country, rich with hope and promise.

It could all disappear in a heartbeat.

A fight in a bar or a second conviction for driving drunk, whether it happened yesterday or 50 years ago, is enough for an immigrant to be deported.

And if the country of origin refuses repatriation, which is the case with Cuba, Vietnam, Laos, Cambodia and others, the person sits in an Immigration and Naturalization Service jail without bond for an indefinite period.

Immigration lawyers fear it could become a life sentence.

A 1996 act of Congress, which imposed new rules enacted in stages completed last year, set the deportation bar very low. The new law says conviction for any crime that carries a maximum penalty of a year in jail could mean a one-way ticket out of America. Even if the sentence was suspended, the conviction alone could mean deportation.

The law does not apply to immigrants who became naturalized American citizens.

Lawyers unfamiliar with the intricacies of immigration law, who believed they were aiding their clients by arranging a guilty plea with a suspended sentence, are discovering they may have given the INS carte blanche to deport their clients.

A national INS spokeswoman said the service and its judges have little discretion.

"If we find out about a previous conviction, we have to deport them," said Amy Otten, an INS spokeswoman. "It's black and white. Fortunately, this does not often happen."

Such cases may eventually be appealed to federal court, but few have reached that point since the law passed, she said.

If all this sounds a bit Orwellian, consider the case of Hoang Minh Ly, a Solon man who ran two nail salons with his girlfriend. He has been in four jails since February.

Ly deposited a $900 counterfeit cashier's check into his brother's account at National City Bank last year, intending to withdraw about half of it. His scheme to score a few bucks landed him in jail for eight months. Upon release from jail in February, he was taken into custody by the INS in preparation for deportation. Since Vietnam will not accept him, Ly's future is uncertain.

"No one is saying that Ly did not commit the crime," said Ly's lawyer, Richard Herman of Cleveland. "He admitted the crime, served eight months in jail and repaid the bank for its loss. Since he can't be deported, the INS keeps him in jail, presumably for life. That is not justice."

Ly, 31, lived in Solon with his fiancee, Holly Tuyen Hoang, a naturalized U.S. citizen and also a Vietnamese immigrant. Together they operated two nail salons in the Cleveland area, employing seven. She has two children from a previous marriage.

Ly had a previous conviction of credit card fraud in Minneapolis in 1993 and served four months in jail. Those were his only criminal convictions since entering the country in 1986.

Herman is fighting the deportation with every legal tool in his arsenal. "This could easily cost a fortune," he said. "An immigrant who can't afford a lawyer has no chance at all."

Ly is being held in the North Royalton Jail for the INS, since the nearest INS detention facility is in central Pennsylvania.

"I made a mistake, I admit that," he said from behind a glass partition in the jail's visiting room. "I would like to be released on bond until the INS decides what to do with me. Vietnam won't take me back. I fled the Communist country when I was 18 and came here. Will I have to stay in jail forever?"

Nationally, about 3,435 long-term detainees remain behind bars because their countries will not accept them back, according to the INS. Immigrant personnel call them "lifers."

Among them are 2,537 Cubans, 429 Vietnamese, 102 Cambodians, 185 Laotians and 182 from other countries.

In Ohio, 52 immigrants are in long-term detention, including seven in the same situation as Ly, whose country of origin will not accept them.

In a July 14 memorandum, the INS announced a modification of the 1996 law. The change allows legal immigrants who served their jail sentences before Oct. 8, 1998 - and had not been convicted of a violent offense - to be released on bond pending deportation.

Mark Hansen, acting INS director of the Cleveland region, which includes all of Ohio, said there is a review process for those awaiting deportation to countries that refuse to accept them.

"They get their first review after 90 days," said Hansen. "An INS judge looks at the case and considers his history. We will consider written testimony at that time. We do not forget these people."

The law to deport immigrants who commit an aggravated felony was introduced in 1988. Then, only major crimes such as murder and trafficking in drugs of firearms were considered.

Congress mandated the INS' current strict posture in 1996, when the agency's budget was increased by $800 million a year to beef up its deportation forces. Congressional impetus for a tougher law came from representatives of California, Texas and Florida looking for relief from the burden posed by immigrants.

But the 1996 act greatly expanded the definition of "aggravated felony." Now it includes any misdemeanor crime that carries a possible sentence of more than a year in jail. That crime could be a minor theft.

When asked about the fairness of the new immigration law, Hansen declined.

"It's not my place to comment on the law passed by Congress," he said. "We don't write the law, we just enforce it."

Deportations are big business for the INS these days. This fiscal year, the INS deported 133,522.

In 1997-98, the INS deported 172,390, about 65,000 with criminal records. By contrast, in 1993-94, the agency only deported 42,304 people.

"Sometimes the very worst thing an immigrant can do is ask the INS for help," said Herman. "If you say the wrong thing, or ask the wrong question, you could be deported. Remember, these are people new to our land and its customs who have difficulty with the language. These people are better off just lying low.

"Their lives are being run by an agency that is as compassionless as it is efficient," Herman continued.

Otten agreed that immigrants must be very careful when asking the INS for help, particularly those wishing to become American citizens.

"We're sure there are many people out there that could be deported under the new law," she said. "We are not seeking them out. But if they come

to us, and in the process of helping them we find an old conviction, we will deport them."

INS officials have testified before Congress asking that immigration judges be given discretion in deciding which immigrants to prosecute. She said that would allow officials to do their jobs and consider individual cases.

Now, a deportee's best hope is that his lawyer can find some legal technicality that could allow the judges to release them.

"No one disputes that the INS needs to protect the borders and keep career criminals out of the country," said Herman. "But there does not seem to be any distinction made between a murderer and a petty thief. They both get deported."

Margaret Wong, another popular immigration lawyer in Cleveland, said she sees many people caught by the new law.

"I understand the thinking behind the new law," she said. "They don't want criminals getting into the country. But a lot of people are suffering because of this, people who only made one mistake a long time ago. The law should not be retroactive and should not apply to so many crimes."

Wong and Herman said there had been a few cases in federal court where the INS' attempt to deport someone for a minor crime -- or keep them in jail indefinitely with no bond - had been struck down.

"Each case can be used to bolster the defense of another case, but they are independent of one another," Herman said.

Matt Tallmer, national spokesman for the American Immigration Lawyers Association, said the INS was not out hunting down these people but would pursue them if their situation comes to their attention.

That could happen if the person seeks a change of status, attempts to re-enter the United States, which would signal a criminal records check at the border, or if someone informs the INS of the person's situation. The latter is common in the case of a divorcing couple or if a rejected partner wants revenge.

And lawyers find the retroactive aspect of the 1996 law particularly egregious.

"These laws are not only unfair, they are unjust," said Karen Meade, chairwoman of the Ohio chapter of the American Immigration Lawyers Association. "The laws make no provision for rehabilitation, no second chances."

PHOTO: NO CREDIT Hoang Minh Ly CHART: U. S. IMMIGRATION IN THE LAST 5 YEARS SOURCE: U.S. Immmigration and Naturalization Service Graphic by: THE PLAIN DEALER

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