INS Detainee Hits, U.S. Strikes Back

By late December, Shakir Baloch, a Canadian of Pakistani origin detained by the U.S. government, had been in solitary confinement 23 and a half hours a day for about 90 days, in a six-and-a-half-by-seven-foot cell, where the lights were on day and night, in a special jail unit meant for violent felons, deprived of contact with family and counsel for most of that time—without ever having been charged with a crime.

“He was desperate to get out,” says Monami Maulik, an organizer with Desis Rising Up & Moving (DRUM), the South Asian community group supporting Baloch’s case.

So on December 20 his lawyers ventured a legal challenge, one that had stood the test of centuries but seemed risky in the law enforcement climate following September 11. They filed a habeas corpus petition in federal court, claiming Baloch was being “unlawfully detained,” without official basis. Soon after, the U.S. attorney’s office in New York’s Southern District charged him with a crime, on which he was subsequently indicted, creating an official basis.

The petition’s backfiring means Baloch remains in the Metropolitan Detention Center in Brooklyn. But it also has a potentially wider significance. For others the Immigration and Naturalization Service (INS) jailed after September 11—early this month, the official figure was 725 overall with 460 still in custody, while rights groups suspect many more—Baloch’s case is an indication that those who claim unjust imprisonment could end up paying for it.

Much of the rest of Baloch’s story is fairly universal. Seeking to support a wife and daughter at home in Toronto, Baloch, 39, came to the U.S. last April to work as a limo driver in New York City. Federal agents picked him up on September 19. Like the majority of post-September 11 detainees, he was never charged in relation to terrorism or labeled a material witness for having important information.

Also like many others, he was deemed deportable early in his detention and agreed to leave the U.S., only to remain in jail without any word of release. Other complaints ring familiar to attorneys and advocates who have been monitoring the situation of detainees. Baloch has charged that he was kept from contacting lawyers and Canadian officials. It took them and his family nearly two months to track him down, since he had been apprehended without notice to anyone and since, according to the habeas petition, the jail on occasion flatly denied that Baloch was being held there. A Voice request to visit Baloch, with his lawyers’ support, was passed from the prison to the Justice Department, which turned it down.

Canadian government spokesman Reynald Doiron says the U.S. government forwarded him a copy of a waiver Baloch signed soon after his arrest, limiting Canada’s ability to intervene on his behalf. “Now, was he under stress or duress? I don’t know,” says Doiron.

INS spokesman Russell Bergeron said last week that Baloch was still “an active case” in the terrorism investigation, since the FBI had not informed the INS otherwise. But Baloch’s lawyers, of the Center for Constitutional Rights (CCR) and National Lawyers Guild in New York, say that prior to their habeas action, he had not heard from the INS for three months or from the FBI for two, indicating that there was no real concern about him. Yet despite the apparent absence of investigation, his lawyers say, Baloch’s removal to Canada never seemed imminent or certain.

Theirs was the second known attempt to bring a habeas complaint in the September 11-related detentions. David Leopold, a Cleveland-based attorney, filed what is believed to be the first, just days before Baloch’s lawyers did. Leopold was representing Israeli detainees who were in the U.S. on valid visas. “I knew I had a strong habeas [argument],” he says. Nevertheless, “I was worried that [the government] could come back with a criminal charge.” He believes the Israelis’ petition—which never went to court—pressured authorities into releasing them two days later. Also key, he says, was the Israeli government’s assurances that the detainees “weren’t members of Al Qaeda.”

Leopold’s fears about retaliatory charges came true, however, for Baloch, at least as far as his lawyers suspect. Two weeks after his December 20 habeas petition—in less time, considering the Christmas and New Year holidays—federal prosecutors brought an illegal reentry charge, on which he was subsequently indicted. The charge is an immigration-related crime, alleging that Baloch entered the U.S. despite having previously been denied admission.

“They’re trying to make an example of him,” says Martin Stolar, the criminal defense attorney who recently joined Baloch’s pro bono team.

A spokesman for the U.S. attorney says the office has no comment beyond its public complaint. But the INS’s Bergeron says, “The government has the prerogative and the discretion as to whether or not to proceed against an individual . . . administratively or criminally.” The criminal charge “is certainly not uncommon,” he says. Yet several immigration lawyers not connected with the case tell the Voice that a criminal charge for someone like Baloch was quite uncommon in the past. Illegal reentry was rarely prosecuted, hardly warranting solitary confinement in a high-security jail, unless the violator was a previously deported felon. Stolar says Baloch has no criminal record, and the U.S. attorney complaint does not indicate otherwise.

“What [the government] is saying is, ‘You’d better not fight us, because we’ll come after you with everything we’ve got,’ ” says Leopold.

An attorney not involved with Baloch’s habeas petition calls it “cutting edge” in the context of September 11 detentions. Another says it was “foolish” to attempt it given the chance of a criminal charge. But William Goodman, CCR’s legal director, says, “There’s always some technicality of the immigration code that could be turned into a criminal charge.” While he says the Baloch outcome has revealed the risk in the habeas corpus argument, he has not stopped presenting it as an option to other detainees.

In fact, “it’s difficult to overstate the importance of habeas corpus for someone in detention,” says Lee Gelernt, senior staff counsel at the ACLU’s Immigrant Rights Project. He says that while a habeas petition can be combined with other kinds of complaints, for instance about constitutional or federal law violations, ruling it out as a means for getting INS detainees a court hearing is virtually unthinkable.

Ultimately, it seems that Baloch had no other recourse. “It’s difficult to just sit there,” says Leopold of INS detainees. Frustration can build until the feeling is, ” ‘If you’re going to charge me, charge me,’ ” he says. In fact, while Baloch awaits future court dates, his supporters have resolved to mount further challenges. Goodman says there is a possibility of bringing further complaints against the government around Baloch’s case. And DRUM organizer Maulik says community members plan to pack the courtroom for Baloch and protest outside the prison, partly to boost morale, but mostly to show that “the people are watching.”