Bad Counsel

The Arrest of an Immigration Lawyer Charged With Smuggling Turns Up the Heat on the INS

After nearly eight months in the custody of the Immigration and Naturalization Service, two teenage brothers, Jiang Jian Wei and Jiang Jian Zhen, were reunited with their mother, Chen Mei Xiu, on September 28, when her plea for political asylum was granted by a New York immigration judge. The boys had been held at a juvenile facility in Miami; their mother endured the INS's windowless Wackenhut detention center in Queens.

The decision came just in time, say immigrant advocates, attorneys, and leaders in the Chinese American community. Only a week before, a 44-count indictment had been served against immigration attorney Robert E. Porges and seven associates, charging them with helping smugglers bring Chinese immigrants illegally into the U.S.—and already, the activists say, asylum claims by undocumented Chinese are being met with increased scrutiny. The arrest has "definitely produced a chilling effect," notes Wendy Tso, the attorney for Chen and her two boys. "Now there will be more cynicism about Chinese cases. That's unfortunate. Many have been harmed, and that's why they're here."

Indeed, the arrest of Porges, his wife, Sheery Lu Porges, and six employees of the Porges Law Firm has already reheated the immigration debate, which has lain dormant for much of the presidential campaign. A series of factors—the two leading candidates' trying to woo Latino voters, demands from business for larger labor pools, the AFL-CIO's support for amnesty for undocumented workers, and a growing admission among some members of Congress that the harsh and inflexible 1996 immigration laws went too far—has cooled the anti-immigrant fervor of the mid '90s.

The Porges indictment, however, has given the fortress-minded Federation for American Immigration Reform a way to try to rekindle the hostility. Only days after federal agents seized more than 500 boxes of files from Porges's office on lower Broadway, as well as some $600,000 in cash from his 17-room Connecticut home, and another $1.6 million from a safe-deposit box, FAIR blamed asylum policy for breeding the sort of fraud Porges and company are alleged to have committed. Specifically, FAIR points to a provision of the 1996 Immigration Act that recognizes opposition to China's one-child-per-family policy as grounds for political asylum, and calls for its reversal.

But this provision of U.S. asylum policy is hardly the issue, say immigrant advocates, noting that the smugglers Chinese refer to as snakeheads carry immigrants into countries throughout the West, regardless of their asylum laws, and that the INS itself has long sought to narrow the application of the one-child claim. According to one attorney who recently quit his job as an INS asylum officer, the agency often argues in cases like Chen's that evidence of forced sterilization should not support the applicant's claim of asylum. Where's the fear of persecution, the INS wants to know: The damage has already been done.

It's attitudes like these, immigrant advocates argue, exacerbated by incompetence, lack of oversight, and the INS's having to enforce rigid, self-contradictory laws devised by a grandstanding Congress, that make it easy for unscrupulous lawyers to take advantage of vulnerable people. At the same time, under the draconian 1996 laws, the number of detainees in INS custody has skyrocketed in the last five years, from 6700 immigrants on an average day to more than 20,000 now, overwhelming an already understaffed and inadequate system. The result, critics say, is an endless series of outrages.

David Beebe, the district director of the INS in Portland, Oregon, for example, abruptly announced his retirement last month, amid mounting criticism of his overly strict and often downright cruel application of the law, which gave the city the nickname Deportland. In the two most recent affronts under Beebe's watch, which intensified calls for his removal, a woman married to a U.S. citizen, and nursing her 13-month-old daughter, was handcuffed, shackled, strip-searched, and jailed before being deported to her native Germany—without her baby—because her visa wasn't in order. And a Chinese businesswoman who entered the country legally was strip-searched and jailed for two nights in August, after which she filed a $500,000 claim against the INS in federal court.

Meanwhile, the agency's Krome detention center in Miami has been under investigation by the U.S. attorney general, the Office of the Inspector General, and the FBI since May, when female detainees began to come forward with allegations that guards were pressuring them to have sex, and a transsexual asylum seeker there charged an officer with rape. So while immigrant advocates can suggest many ways in which the INS might monitor suspicious attorneys and step in to prevent exploitation, they don't expect much action soon from the beleaguered agency, which doesn't seem to be able to control even its own employees.

One such advocate, Christina Kleiser, a supervising attorney with the Florida Immigrant Advocacy Center, offers regular know-your-rights assistance to detainees at the juvenile facility in Miami where the Jiang boys were held. The Chinese kids, she says, typically think they have a private attorney who will also handle court proceedings—and often it has been Porges. The immigrants frequently show up for their hearings only to find that their long-distance lawyer has not filed the required papers, she reports, and the detainee languishes through one continuance after another over some months, and finally gets deported. "It seems as if the judge ought to have a duty to make a phone call to the bar or somewhere if the lawyer isn't even making a minimal effort," she says. The Justice Department's Executive Office for Immigration Review does have some guidelines for attorney conduct that immigration judges can enforce; Kleiser has never known it to happen.

According to a case manager at the 56-bed juvenile residence, at least three of the Chinese kids currently in custody there were on Porges's client list when he was arrested on September 20. And though the U.S. attorney's office, which issued the indictment, cannot disclose how many open cases the firm was handling at the time of the arrest, the indictment alleges that over the last seven years, Porges and his associates represented nearly 7000 Chinese asylum cases, so it's a fair guess that at least hundreds of erstwhile clients are now left in the lurch. Whether the INS will give these clients extra time to secure new counsel remains to be seen—INS spokesperson Mark Thorn says that cases will be considered "on an individual basis." It is difficult for any detainee to find representation, but whether these immigrants, stripped of the fees they already gave Porges, will have any money left to hire an attorney for their asylum cases, which can cost anywhere from $2000 to $7000, is also impossible to know.

But just as important a question is whether, even if they do get good, honest representation, they will get a fair hearing. "No doubt the arrest of Mr. Porges puts a cloud of suspicion over those who were his clients," says Muzaffar Chishti, director of the Immigration Project at UNITE, the garment union. "But the fact that they were so desperate to come here that they went with a snakehead does not tell us anything other than that they were indeed desperate. After all they've been through, their stories of persecution in many ways should be heard with extra care."

The extent of the smuggling operations, too, suggests something about the failure of U.S. immigration policy. Even as the U.S. joins in an international effort to crack down on human trafficking, steps up interdictions at sea, and applies new racketeering laws to the likes of Porges, it cannot stanch the flow of some 1 million people who leave China each year, according to United Nations estimates.

"They catch one snakehead or one lawyer and another soon comes to take his place," notes Wing Lam, executive director of the Chinese Staff and Workers' Association. "People will keep coming as long as the government doesn't address the more basic issue: the sweatshop situation." As long as there is demand for cheap, unskilled labor, people looking for a better life—whether in purely economic terms, or in terms U.S. law recognizes as deserving of political asylum—will provide a steady supply, Lam explains, and as long as labor laws are not enforced, making these jobs unacceptable to legal U.S. residents and citizens, the demand only increases.

Meanwhile, the factors that push Chinese away from their homeland are likely to be exacerbated by the recent approval of permanent normalized trade with China, Chishti and Lam agree. "Trade was the only leverage the U.S. had on human rights issues," says Chishti. "Without that leverage, it's likely that the abuses will only get worse." Meanwhile, adds Lam, burgeoning development in Chinese cities will pull more laborers in from the rural areas, and as they flood the job markets there, the surplus workers, like those in Mexico, will look to New York, which has some of the lowest wages and most meager enforcement standards in the U.S.

In announcing the arrest of Porges, INS commissioner Doris Meissner noted that "Manhattan attorneys in three-piece suits do not typically come to mind when the public pictures the criminals who traffic in human cargo." But for those with a deep economic analysis of the smuggling operations, three-piece suits have indeed been part of the picture, especially as worn by the bosses of garment shops and New York restaurants. As long as demand for cheap consumer goods and services, and thus for cheap labor, keeps on escalating in the boom economy, says Chishti, the best way to put an end to the trafficking in human cargo is to "liberalize immigration policy."

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