In Jail Forever?
Said's Story
By Robert Bryce, Fri., Dec. 18, 1998
The situation in Said's hometown, the West Bank town of Batunia, which lies 10 miles northeast of Jerusalem, has not changed much since 1969, when Said was born. The economy is still lousy, unemployment still high. Those factors led Said to leave Batunia with his grandmother. On his 10th birthday, he was allowed to enter the U.S. with only a birth certificate. Since then, he has lived in Chicago with other members of his family, including his father and uncle, who runs a bakery. And while other members of his family became citizens, Said did not.
He worked at various jobs, including a stint in his uncle's bakery. But Said was soon running with the wrong crowd. He became addicted to crack. In 1992, he was convicted in Phoenix of fraud. Two years later, he was arrested and convicted of possession of crack cocaine. In March of 1996, he was convicted of crack cocaine possession and trespassing, and sentenced to one year in Illinois State Prison. Overcrowding in the prison led to what should have been his release in July 1996. Instead, Said went into the custody of the INS, where he has been ever since.
When the Chronicle initially asked to talk to Said, the INS insisted that it did not have any Palestinians in custody. Eight days later, when the INS agreed to let Said talk to the media, the agency insisted that an INS representative had to be in the room during the interview. It also insisted that the INS "reserved the right to respond to any remarks he might make." (An INS press officer in Washington, Russ Bergeron, later told me that the agency did not have a policy that required agency officials to be present, and offered to set up another interview if Iwanted one).
Given the INS's cautious approach to dealing with Said, one would expect to meet a large, menacing character. Instead, when Said finally emerged from his Victoria jail cell, his hands and legs shackled, he looked scared. A soft-spoken, baby-faced man of perhaps 150 pounds, he was nervous but eager to tell his story. Over the course of the next hour and a half, it became clear that Said had fallen through the cracks of the American judicial system. A month after he was transferred to the INS, the agency determined that Said was deportable. Since that deportation hearing, Said said that he was never contacted by the INS again, nor was his case ever reviewed. The first time Said met with an INS official to discuss his case was when he met Pete Gonzales, an INS deportation officer, whom the agency had designated to monitor Said's interview with the Chronicle. (When asked why he felt it was necessary to be at the interview, Gonzales replied, "This is a very sensitive issue.")
It would be easy to typify Said as a crackhead who is getting what he deserves. And there is evidence to support that position. Said had many opportunities to become a U.S. citizen. His mother, father, and uncles had all gone through the process and could have helped him. Said had taken the citizenship test and passed it. "I had an interview scheduled. All I had to do was turn in the Selective Service form and get sworn in," Said recalled. But he didn't go. Instead, he decided to chase the next high, the next crack pipe. And now he has landed in jail. So, tough luck. That's the position of Dan Stein, executive director of the Washington, D.C.-based Federation for American Immigration Reform. "A person who repeatedly breaks our laws has taken the opportunity we gave them and blown it," said Stein. "Life doesn't provide unlimited opportunities. He had his shot, and he blew it."
But while Stein takes a hard-line approach with the non-deportable criminal aliens, he also thinks that the INS and the U.S. government should be doing more to deal with Said's situation. "There's no excuse for why the State Department hasn't dealt with this. If we can't exert pressure on Israel to take this guy back, we are pretty pathetic. When you talk about the billions of dollars we are giving Israel, they could at least give us the benefit of the doubt." Stein adds that perhaps Said should "appeal to Yasser Arafat."
Said said he has asked the Israeli consulate for help on his case, but has gotten none. Estelle Panzer, press officer at the Israeli consulate in Houston, said her office has no records of a request from Said or any other governmental agencies about his case. "Just because he is a Palestinian doesn't mean we won't help him," said Panzer. But Said, who doesn't have a passport, has little hope that the Israelis will help him get out of prison. "The Israelis don't want more Palestinians," he said. "They are trying to get rid of what they got." And while he wants to stay in the U.S., he said he would gladly return to Palestine if it means getting out of jail. "If they will deport me, I will go right now."
Said's relatives in Chicago say they've tried to get him out, and have sent a letter to the INS telling them that Said will have a job and a place to stay if and when he is released. But they haven't heard anything back. Said's uncle, Omaya Othman, who owns the Al Rasheid Bakery on Chicago's South Side, says that after nearly three years in jail his nephew has learned his lesson. "I think he will change. He has to be straight. We will help him. We will find a good wife for him and things will be better."
That might happen, but it doesn't look like it will happen any time soon. Clothed in an orange prison uniform, Said appeared to be near tears at the end of the interview. He held no illusions about his predicament or about his criminal past. "I'm not a choir boy," he said. "But I served the time for the drug possession. In America, you do the crime, you do the time. The only crime I have now is that I don't have a country, and I am paying for that with my life."
The 1996 Law and an Exploding Population
Don't expect much sympathy for Said from the man who wrote much of the bill that keeps him behind bars. Earlier this month, when asked about the possibility that Said could spend the rest of his life in jail, U.S. Rep. Lamar Smith, R-San Antonio, would admit only that Said's situation is "unfortunate." In 1996, Smith, who chairs the House Immigration Subcommittee, was a key backer of the law known as the Illegal Immigration Reform and Immigrant Responsibility Act and the Anti-terrorism and Effective Death Penalty Act. The law ó the first major overhaul of America's immigration laws in 30 years ó calls for the deportation of any noncitizen convicted of a felony, regardless of when the crime was committed or any other mitigating circumstances.
| THE INS PRISON POPULATION EXPLOSION |
| 1995: 6,600 |
| 1996: 8,600 |
| 1997: 11,000 |
| 1998: 16,000 |
| (60% are criminal aliens) |
Russ Bergeron, of the INS in Washington, D.C., said the agency's inmate population has surged in large part because of the change in the 1996 law that expanded the number of offenses that are considered aggravated felonies. Bergeron said that any drug conviction beyond simple possession of marijuana is considered an aggravated felony. In addition, everything from simple theft to a violent criminal act also falls under that category. Once a noncitizen is convicted of an aggravated felony, that person is required to be detained and deported. Bergeron defends the current system, saying that Congress has decided that immigrants who come to the U.S. have "the responsibility to live as honest, productive, law-abiding members of society. If they fail that obligation, they run the risk of forfeiting that privilege."
There was another important change made in the 1996 law: No distinction was made for crimes that were committed years ago. In one case, a New York man was arrested by the INS and spent six months in INS custody for a crime that he committed more than 20 years ago.
The INS now spends an average of $58 per day per inmate to house its detainees. This year, the agency will spend $700 million for detention and deportation of aliens. And according to the Los Angeles Times, that figure will double if the INS's inmate population continues to grow at current rates. However, the growing costs of incarceration do not trouble Smith. "What bothers me would be the cost in lost lives and health costs and lost safety to the community if they [criminal aliens] were released," he said.
Arbitrary Detention and International Standards
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Two international human rights documents prohibit the use of indefinite detention, including the Universal Declaration on Human Rights, which was ratified by the members of the United Nations on December 10, 1948. Last week, nations around the world celebrated the 50th anniversary of the ratification of the declaration with festivals and ceremonies. Article 9 of the declaration states that "no one shall be subject to arbitrary arrest, detention or exile." In 1992, the U.S. ratifieda more specific human rights document, the International Covenant on Civil and Political Rights (http://www.unhchr.ch/html/menu3/b/a_ccpr.htm). The ICCPR says, "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention."
Although it appears that the ICCPR, which has the strength of treaty, applies to Said and the other non-deportable criminal aliens who are in INS custody, U.S. officials say it does not apply. Andre Surena, an assistant legal adviser at the State Department's Office of the Legal Adviser, said that when the ICCPR was approved by the Senate, several reservations and declarations were attached. One declaration said that provisions of the covenant "are not self executing," which, according to Surena, means that "the covenant cannot serve as the basis for a private lawsuit in the United States."
While that may be the case, it hasn't prevented human rights activists from criticizing the policy. Nicholas Rizza, the national refugee coordinator for Amnesty International USA, said, "We are exploring the notion that indefinite detention, without the possibility of parole, might be cruel and inhumane treatment under international standards. The government should begin to think about at what point does a sentence for minor drug possession get to be outrageous. Is it 10 years? Twenty years? At what point does it go beyond any norms of reasonableness?"
For his part, Smith says the blame falls on the INS, not on the law passed by Congress. "I think the INS should be doing a better job in deporting criminal aliens quickly and effectively," he said. "And I think they ought to be doing a better job of releasing people who aren't supposed to be in jail. But that's an INS problem, not a problem with the 1996 law."
Wasting Away
Perhaps the agency is justified in keeping violent offenders locked up. But what about Said? He has never committed a violent crime, nor has he shown any violent tendencies. He has family in Chicago who will give him a job if the INS releases him. And since the Chronicle interviewed Said several weeks ago, the INS appears to have taken an interest in his case. Gonzales, the INS deportation officer, said last week that he is "working on" the case. So perhaps there will be a happy ending for Said. But what will happen to the hundreds of others? What will the INS do with men like Juan Herrera (see "Buried Alive," p. 30), a sickly 62-year-old Cuban who has spent 17 years in prison, two of them in INS custody? Will he die in INS custody?
Still, the more important issue may be the credibility of America's own stance on human rights. Burns H. Weston, associate dean for international and comparative legal studies at the University of Iowa Law School, says there is no question that the United States is "violating the spirit" of the ICCPR. "It's a sad commentary that the U.S. is unwilling to jump with all feet into the international community and take serious leadership" on human rights, he said.
But Weston, who has published widely on the issue of international human rights, including a 1992 book called Human Rights in the World Community, says the United States has always had "a willingness to point fingers at others. We were pointing fingers at other countries when we had legal apartheid in the South."
Smith, however, fails to see the contradiction in America's position on civil rights abroad and civil rights at home. He said it is "up to the government to work better and make sure those folks get a chance to go home. Or just send them back one way or the other." As for Said's situation, Smith said, "There isn't an obvious solution because the obvious solution is for them to be sent back to their home country. And if they want to commit more crimes somewhere else, that's fine, but we shouldn't release them out in our communities where they might commit more crimes here."
Smith may be correct. Said could commit more crimes here in the U.S. Or, he could be released and be a model citizen. Said wants to prove that he can do just that. Yes, he admits that he did wrong. But he adds quickly, "I'm not a threat to society. I didn't commit a crime heavy enough for me to spend the rest of my life behind bars."
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