Since then, Nicholas has been in INS prison, leaving his wife and three children with no source of income, leaving his house half-built.
Umberto Nicholas' imprisonment is the delayed fallout of the 1996 Immigration Reform Act and the Anti-Terrorism and Effective Death Penalty Act. One element of this long, messy legislation is that immigrants who committed a crime which received a sentence of at least a year must be deported. The "must" is the critical part--it allows the INS no room for discretion. As a result, legal immigrants who have been in this country for decades are being plucked from their lives over shoplifting charges from the '70s.
Nicholas didn't do something that innocuous; soon after he came to this country in the '80s, he was charged with attempted sexual assault. He served his time, went through Alcoholics Anonymous and counseling programs for sexual offenders and stayed in them. He now leads counseling sessions at his church, where he also teaches Spanish and serves as a deacon. Nicholas recently received an award from State Senator Norm Dicks for outstanding achievement through the JOBS program, which retrains workers who have been laid off.
Alexander said, "I never would have approved of him marrying my daughter if he wasn't a different person than he was when he did that. He's hardly spent the last 10 years sitting around drinking beer and beating on his wife. He is loving and kind, and the most hard-working person I've ever met." Alexander says that most of her Shelton neighborhood has turned out for Nicholas' INS hearings, and that the church "is incredibly gloomy. People can't believe this is actually happening." Then she starts to cry.
Since Nicholas has been incarcerated, his wife has had to apply for food stamps. The church has paid her rent and bills, but that can't continue forever. Her kids are afraid to be left at school or with a baby-sitter because they think their mom might also disappear. Every time her four-year-old son sees a man with a badge, he says, "That man took my daddy away." The Nicholas family was working with Habitat for Humanity to build themselves a bigger house--but recipients of Habitat houses have to contribute 500 hours of labor toward their house's construction. With Nicholas indisposed, it's not clear how the family will hold up their end of the bargain.
Alexander, who heads up the Loss Prevention division of JC Penney, is a law-and-order kind of woman. But her quick education about the INS has left her amazed: "They have been so rude and inhuman it's incredible. I can't believe what's been happening with the people in detention, how they're sleeping on the floors and in jails. I'm ashamed if this is the American dream people are longing for."
Destroying FamiliesSince 1965, American immigration policy has promoted "family reunification" as its first value. Our country was one of the few which gave strong priority to spouses, kids, and parents of residents when issuing visas, as opposed to giving more weight to things like educational achievement. The immigration reform legislation of 1996 marks the first significant break with the family reunification policy.
Alexander said, "If they were going to deport him, they could have told him before he had two more children and they spent all that money on citizenship papers that they could hardly afford."
The retroactive nature of the bill is under scrutiny in the courts. Seattle immigration lawyer Carol Wolchek is hoping the questionable legality of retroactive legislation will save one of her clients from deportation. Months before the 1996 legislation was enacted, Wolchek's client, a woman who has been in this country for 15 years, accepted a guilty plea for a crime she had no involvement with just to expedite the process. The woman says she was tricked into driving a car with a trunk full of marijuana for her then-boyfriend, and the judge believed her; he gave her no bond, and released her on her own recognizance. The woman, who has a five-year-old daughter and runs her own business, just wanted the situation to be over as quickly as possible, and a guilty plea seemed like the best way to do that. Obviously, if she'd known that the law was going to change, she would have attempted to prove her innocence. Now she faces deportation to the Dominican Republic, a destitute country that most of her family has left.
One of the main reasons there was so much lag time between the legislation and its implementation is that the INS said it was not feasible for them to detain as many people as the legislation requires them to. They were allotted two transition years, and last October the INS lobbied Congress to either further extend the transition period or allot more funding. Neither request was met. During the last two years, the INS has been able to use discretion in whom it chooses to detain. It has been able to let productive citizens who pose no threat to society--like Wolchek's client and Umberto Nicholas--go about their lives. This discretion has been particularly important with people who can't return to their country of origin.
Many immigrants came to America as refugees of war, political and economic instability, destruction from natural disasters--circumstances that make going back impossible. There are many countries that the United States doesn't recognize, like Palestine, or doesn't have diplomatic relations with, like Cuba, and there are some countries that simply won't accept a criminal back. People whose country of birth falls into any of these categories sit in prison "awaiting" a deportation that is unlikely to come. Currently, according to the INS, there are 3,000 "long-term detainees," or "lifers," and there is no systematic policy for dealing with them.
Can't Go HomeKim Ma became a lifer at 19, after he completed a one-and-a-half-year sentence for his role in a gang-related shooting. Ma, now 21, was incarcerated when he was 17, before he was able to legally qualify for citizenship. The day Ma was done serving his sentence, his family went to pick him up and were told he would be deported. He was taken straight to the INS detention center in the International District. That was nearly a year and a half ago. Ma was born in Cambodia, a country which has no diplomatic relations with the U.S., and which has been torn apart by civil war for the last 30 years.
Most immigrants in Ma's situation are being held at the Regional Justice Center in Kent, or the INS prison downtown. Ma, however, is being held alone at the King County Jail, since he led a hunger strike at the INS prison a few months back. Ma says he was moved after the hunger strike because he was considered a "troublemaker." He said the people who participated in the hunger strike with him either had their deportation hastened or were scattered to other area prisons. Local INS officials would not return calls about Ma's case.
Isolated as he is at the jail, Ma's situation is particu-
larly lonely and upsetting. "The guys in here don't know what I'm going through. They're here for shootings and stabbings. I did my sentence, and I'm in for being an immigrant. They don't understand that, and I don't have anyone to talk to about it. If something goes down with the situation, how am I gonna know? These guys get booked, they go to prison. They move in and out. I just stay here."
The fact that immigrants awaiting deportation are being held in prisons as opposed to INS centers is one of the more contentious aspects of the new policy. Nearly all of the detainees have already completed the sentences for their crimes, but they are still being treated as criminals. Many of the crimes that land immigrants in jail are things like returning to Mexico to visit a sick relative, then re-entering the U.S. before the new time limit set by the legislation. In fact, under the new law, when immigrants fleeing persecution--"asylum seekers"--arrive at our airports, they are taken to jail until they can prove they have "credible fear" of returning to their country. They are often kept in jail until the process of awarding asylum is complete, which can take months, even years. According to INS figures, there are 5,000 asylum seekers being held in detention.
Immigration lawyer Helen Morris notes, "It's particularly hard for people who have left horrible conditions hoping for a better life to find themselves in jail when they have never committed a crime."
'I'm not from anywhere else'The Kent Regional Justice Center isn't the only place where there have been hunger strikes. Similar protests have occurred at detention centers around the country, and there have been riots in the New York and Miami centers.
Human Rights Watch recently released a scathing report criticizing INS detention practices. The report noted that of the 16,000 immigrants being held in detention at any one time, 11,000 are housed in prisons as opposed to immigration facilities. The authors of the report found that there is little oversight by the INS, abuse is rampant, and immigrant inmates frequently lack access to basic prison services or translators. A spokesperson for the INS said the agency is "taking steps to ensure that people in detention receive fair treatment." She said that some accounts in the report weren't accurate, and that it is not feasible that the large amount of detainees could be housed solely in INS facilities anytime soon, because those centers are expensive to build. She added, "We are talking about criminals here. Criminal aliens."
You wouldn't know Kim Ma was born in Cambodia from talking to him. He is clearly a product of the White Center housing projects he grew up in: he can't read or speak Cambodian, but he has the double negatives of Ebonics down pat. Ma came to America when he was seven. The only memories he has of Asia are of the refugee camps in Thailand where his family stayed after fleeing the Khmer Rouge. He doesn't remember much, just the Red Cross volunteers telling them not to use up the supplies and food too quickly because they wouldn't be back for a month--and the dirt. "I didn't know it was dirty then, I didn't know anything else. You know how that is? When you get somewhere better and look back and realize, 'Wow, that was wack!'"
Ma never had any idea when he was messing around with gangs that the repercussions could be this severe. "I never knew that I was an alien, and I never thought anybody could get me deported. I thought, 'Oh man, this is my country, I'm here and I'm not from anywhere else.'"
Ma doubts Cambodia will ever take him back. "They don't want no more criminals there. The American government is saying, 'We ate the meat off the bone. You want the bone back?'"
Ma would really like to go home. "I ain't never been away from my parents before I got sent to prison. It's hard, you know? My dad is not getting any younger, and my little brother is growing up without me. I just sit here and sit here. My older brothers and sisters got houses and families. I never got the chance to prove I could do something, do anything. I'm already in jail. I'm just in jail forever."
Ma estimates that about half of his gang has been through prison since he's been there. "The Blacks got to go home. Some of the Mexicans got deported. The Cambodians and Laotians are still in INS prison."
'An American Pathology'Jonathan Moore of the Northwest Immigrant Rights Project observes, "What's happening here is, we are scapegoating immigrants for what is essentially an American pathology. We say, 'Come here, live in poor neighborhoods, go to bad schools, and when you mess up we'll throw you out.' It's not as if people import gangs from El Salvador or Laos."
Many Uch, 22, ran in Ma's gang, but he has none of Ma's bravado. He was sent to prison in 1994, a week before he was supposed to graduate from high school. Like Ma, he was a resident alien and was incarcerated before he could legally qualify for citizenship on his 18th birthday. He's soft-spoken, slim, and deeply regretful of the actions that landed him in prison. In high school he drove the getaway car for some gang members who were trying to rob a convenience store. Uch had gone to his guidance counselor a couple of times to try to free himself from the gang's grip, and from alcohol and drugs, but he says, "I was in too deep. It was all the kids I grew up with. It was my whole neighborhood, and if I left I wouldn't be safe. And I couldn't think straight anyway because of the drugs."
Now, bizarrely, Uch seems to see deportation as a way out of a world he always felt uneasy about and ashamed to be part of. In the additional 16 months he's sat in prison since the 22-month sentence for his crime ended, he's learned to read and write Cambodian, has studied Cambodian history, and started holding religious ceremonies in prison. He wrote to his father, who he was separated from when the family was held hostage in the jungle by the Khmer Rouge. He asked his father to sponsor him in Cambodia, to put extra pressure on immigration to speed up his deportation.
"I never thought about this kind of thing before. I never knew about my country or anything. I was so busy with the gang and stuff. I wish someone had taught me these things."
Should Ma or Uch be sent to Cambodia, Uch's research would make him marginally better equipped. But like Ma, he has no memory of Cambodia--just refugee camps--and only a vague notion of what the country is like: "I know it is very poor. My dad, I'm sure, doesn't have a car, or even a bike. I know the political situation is bad. I think they had a lot of violence during the election."
Uch's mom, Hueng Luy, 63, doesn't want Uch to go back to Cambodia. For one thing, she says, it's not safe. From her apartment, where a giant TV murmurs things she can't understand, and expired calendars with pictures of Cambodia decorate the walls, she says, "Many used to be with me. We spent time, had fun. When he went out he always called. Always took me to the movies."
Since Uch's incarceration, a network of neighbors gives Hueng rides and helps her out. She gets by, but the only thing she doesn't look to a translator to interpret, which she says directly to me, is this: "Sad, sad, every day, sad."
"My mom thinks I'm just making the decision because I'm stuck here, and that's true, too," Uch says. "It's better to go anywhere than be locked up for my whole life."
His whole life? Well, it was only recently that provisions were made to release some of the non-violent detainees who came from the city of Mariel, Cuba in 1981. The Mariel immigrants arrived on a boat-lift sent by the U.S. to rescue them from Communism; since the U.S. doesn't have relations with Cuba, the detainees would never be sent back home.
Recently in San Francisco, a panel was set up to review the cases of non-violent "long-term" detainees like Uch. There's no reason the same thing couldn't happen in Seattle, and in fact, last August the INS scheduled a hearing to review the cases of 30 of the area's 375 lifers. Families began arriving from all parts of Washington for the hearing, but it was canceled abruptly, with no explanation and no reschedule date. There are no guidelines for dealing with deportees who can't be deported; something could happen, or nothing could.
Constitutional ProtectionsThe fact that this legislation prevents the courts from hearing individual cases is one more cause for contention. With these bills, Congress basically said that once the INS or the Board of Immigration Appeals orders deportation, that's the end of the story, and an immigrant can't go to court to stop it. The U.S. Supreme Court will hear two cases this summer which examine whether Congress has the right to strip judicial authority in certain areas of policy, and whether any class of people within our borders should be denied access to the courts.
Aurora Figueroa of the American Bar Association said it is the organization's view that "Congress can't strip courts of jurisdiction when fundamental rights are at stake, like life and liberty. Access to the courts is an essential element of due process"; she adds that this is particularly important because "immigrants and other people in society who are vulnerable have found the courts have been the most favorable branch of government, as far as hearing their concerns and protecting their rights."
One case before the Supreme Court involves immigrants' right to free speech: a group of Palestinians are awaiting deportation on the grounds that they were fundraising for political parties in the Middle East. Figueroa says, "If a U.S. citizen were doing the fundraising, it would be permitted under the First Amendment."
Wolchek says, "If they can do that to this group of people because they're not quite Americans, they can do it to any group that doesn't have political power."
She adds, "The Constitution is supposed to apply equally to everyone here within our borders. Our country is a nation of immigrants. These people are somebody's relatives, husband or kids, in addition to being present here and supposedly entitled to Constitutional protection."
This idea, that we are a nation of immigrants, has never sat quite right with us. Maligning the "foreign populations" among us, and seeking to deport or close our borders to certain groups, are ongoing themes in our history. However, certain conditions have changed since the waves of immigration at the turn of the 20th century: for one thing, the value of immigrant labor has declined as the value of skilled, educated workers has increased. In addition, at the turn of the century there was no welfare system, so current complaints that immigrants, 21 percent of whom use some social services, place a burden on the system weren't an issue then.
But there's no disputing that immigrants still support entire industries (Washington's apple growers, for instance), which insures that some of them don't leave this country, and it's entirely because of their willingness to work hard under bad conditions. There is some debate over whether the presence of this cheap labor force contributes to greater discrepancies in wealth, and blunts the ability of all workers to demand better wages and treatment.
Jonathan Moore of the Northwest Immigrants Project says the 1996 reforms will, if anything, exacerbate that situation. "This isn't going to stop immigration. It's just going to make immigrants more vulnerable, more afraid to call the cops, more susceptible to abuse by employers."
In fact, one of the most critical and powerful weapons the Yakima and Wenatchee apple growers have used to prevent their mostly immigrant work force from organizing a union is the threat that they will call the INS. Art Ramirez, organizer with Teamsters United for Change, notes, "Employers use the immigration thing to beat up on them constantly, and this legislation only heightens that situation.
"Some people are willing to give up a job to fight for a better future, but people can't give up their country and their family. There isn't any greater threat than deportation, leaving your whole life behind," Ramirez said.
'To Preserve White Culture'The 1996 legislation may have been helped along by concerns about whether our economy can sustain more immigrants--but that's not all it's about. It's certainly better for the economy to have Umberto Nicholas supporting his family than to have him eating up taxpayers' money in jail. Seattle immigration lawyer Bob Pauw points out that "anti-immigrant legislation is typically enacted during times of recession, but in 1996 the economy was doing very well. It is somewhat out of the historical pattern because it comes from different motivations."
Pauw thinks that one of these motivations is racial. He points to the stipulation in the legislation that people who enter this country "without inspection"--typically those from Mexico and Central America--can't apply for citizenship while they are in this country. If they do, they're barred from re-entering United States for 10 years. That doesn't apply to people from Europe or Canada. Pauw adds that original drafts of the legislation contained measures limiting the number of immigrants from certain cultures. He said, "The motivation underlying the changes, although it may not have been expressed explicitly, is a desire to preserve white culture."
A recent article in the Wall Street Journal
reported somewhat incredulously that huge numbers of Hispanics responded to INS employment recruiting efforts, and now work the border patrol with the same kick-ass, sometimes abusive behavior exhibited by their white coworkers. The article notes the irony of having people who immigrated here recently, often illegally, strong-arm others who are trying to do the same thing. Really, though, this shouldn't be surprising. It's only a more transparent example of what we are doing with this legislation: standing at the borders of our recently acquired nation, which only a minute fraction of us can claim as our ancestral home, and firming up the line between "us" and "them."
Immigrants awaiting deportation are the fastest growing segment of our ever-expanding prison population. Perhaps if we present them with conditions more like those they fled from--giving them life sentences for minor crimes and no access to justice--we will see our problems slowly evaporate. Or perhaps all we'll see is, as immigration lawyer Helen Morris says, "increased detention resulting in increased human misery."