Going to Held

Detention Nightmare: Immigrant Agrees to Deportation, but Government Snafus Intervene

In its stepped-up efforts to kick anyone who has violated an immigration law out of the country as hastily as possible, the Department of Homeland Security (DHS) deported 118,686 people from the United States between October 2002 and May 2003, a 26 percent increase from the same period the previous year. Earl White wishes he were one of them.

It's not so much that White, 27, really wants to return to Guyana, the homeland he left at age 14 to join his father and siblings in Hartford, Connecticut. But he decided that anything would be better than remaining in immigrant detention one minute longer. In October 2001, after 18 months in the custody of the INS, now the Immigration and Customs Enforcement (ICE), White accepted the government's order of deportation: He agreed to go back. Two years later, White is still languishing in the immigrant wing of the Suffolk County House of Correction in Boston, pacing through listless hours at a cost to taxpayers of some $60 per day.

One year after Congress voted to create the DHS and dissolve the long-beleaguered INS, there's no question that immigration enforcement has gotten tougher. But the distribution of INS functions into three separate bureaus of the DHS was also meant to clean up the inefficiency and mismanagement that had earned the INS its status as—in one Congress member's memorable phrase—the government's "most dysfunctional agency." Now critics charge that the inflexible, zero-tolerance approach to everything in the DHS's purview, along with a confusing system of separate offices with specialized functions, is creating more blunders and bungles than ever. The case of Earl White is just one Kafkaesque example.


Though Earl White has a green card, he was put into deportation proceedings in March 2000 after he served a one-year sentence for misdemeanor assault (the ugly culmination of a domestic dispute with his former girlfriend, with whom he has two young U.S.-citizen children.) Stringent tough-on-crime laws passed in 1996 as part of the Gingrich revolution made deportation and detention mandatory for noncitizens who had committed what the legislation called "aggravated felonies," even though many of the infractions encompassed by that category are classified as misdemeanors in the criminal code. Like the thousands of other "criminal aliens" who make up the majority of the ICE's more than 20,000 detainees, White was handed over to immigration authorities just as he thought his time in the pen was over.

Despite expressing remorse for his crime, and showing that in prison he'd successfully completed anger-management programs and gotten off alcohol, White lost his deportation hearing. He appealed, and on October 26, 2001, after he'd been in immigrant detention for six months longer than he'd served for his crime, his appeal was denied. That's when he decided not to continue legal proceedings, but to return to Guyana.

Ever since, his attorney, Estelle McKee, has been bounced from office to office as she has tried to get the government to do precisely what it has ordered. Representing White as part of a pro bono pilot project run by the government's own Board of Immigration Appeals, McKee has been running an obstacle course of mismanagement and hostility. ICE has no comment: As a matter of policy, the agency will not discuss specific cases.

In October 2002, McKee recalls, immigration authorities told her they had requested the necessary travel documents from Guyana the previous May (seven months after the final order of deportation was issued) and White would be leaving "any day now." They referred further questions to Headquarters Post-Order Detention Unit (HQ-PDU) in Washington, D.C. Two months later, in December, White filed a request for a "custody review"—which long-term detainees are entitled to at six-month intervals—arguing that he could await his deportation on the outside. Months passed without an answer.

In repeated calls to HQ-PDU in March and April of 2003, McKee says she was told that "they had never heard of Earl and that he was not in their databases." As for his custody review, though McKee had personally sent White's application by FedEx—and had the receipt to prove it—officials at HQ-PDU told her they had not received it.

Eventually, in mid April, someone at headquarters located details about White in a computer. "He asked me why Earl was still in the United States," McKee recounts. Most shocking, he told her that Guyana had issued travel documents the previous August. Weeks later, in May, the Boston district office promised that White would be deported within a few weeks. But May came and went, then June, and this past July an officer in the Boston district office again told McKee that deportation was imminent. Nothing happened.

When McKee pressed for an explanation, she was told that the travel office handling such matters was moving, and that White's files were probably in a box, unavailable until everything was unpacked in the new space. Finally, in September, the travel office reported that White was booked on a flight. It took off without him. Authorities could not locate his travel documents.


Thousands of other long-term detainees can't even hope for the ambivalent relief of deportation because travel documents will, as a matter of principle, never be provided by their native countries: Either the U.S. has no diplomatic relations with these countries or the countries refuse to take deportees. Manhattan-based attorneys Theodore Cox and Josh Bardavid currently represent two such "lifers." One, an Iraqi who defected from the Republican Guard in 1991, asked for asylum here, but was denied. The other, a Palestinian from the Gaza Strip, has been held in the Elizabeth, New Jersey, detention center for four years. Although in immigration hearings the government agreed that he was not a danger to society and was not likely to fail to show up for further hearings—the requirements for detaining those in deportation proceedings—prosecutors argued that letting him out would knock a "chink in the armor" of America's national defense by setting a bad example. Such generalized justifications for detention are increasing around the country, even though, says Bardavid, "the law is clear that determinations must be individual."

What's more, the Supreme Court ruled in June 2001 that indefinite detention of noncitizens was unconstitutional. According to Lucas Guttentag, director of the ACLU's Immigrants Rights Project, that ruling is being implemented unevenly, with some Circuit Courts siding with the government's narrow and technical interpretation. In any case, Guttentag notes, the government has "shifted the burden back to the individual detainee to litigate a right that ought to be automatic." Meanwhile, in a ruling last April, the Supreme Court asserted that noncitizens do not have the same constitutional rights as citizens.

In the post-9-11 climate, says Guttentag, cases like Earl White's "end up being fairly low on the list of priorities," and last year's reshuffling of the INS has done little to streamline its procedures. "Failure of management, lack of resources, inability to control the actions of their own bureaucrats, chaotic implementation of policy based on local officials' arbitrary decisions—these are not fixed by shifting the structure."

Just last week, McKee learned that her client is scheduled to be sent to Guyana later this month. The travel office has assured her that it has White's documents.

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