You currently do not have JavaScript enabled in your web browser.
The ABA website relies on JavaScript for display purposes.
To fully experience the ABA site, please enable javascript.
A Victory for Justice


Immigrants Fleeing Human Rights Violations Deserve Better
from the U.S. Than More of the Same

By William G. Paul
American Bar Association

"This is a country that respects people’s rights. I come here because this country is a freedom country for me to raise my family." Bi Meng Zheng, while being held at an INS Detention Center.

Bi Meng Zheng fled China for the promise of freedom. Sadly, reality and promise don’t always coincide.
The Immigration and Naturalization Service jailed Zheng after he missed his first immigration court hearing. He was ordered deported, but China refused to repatriate him.

Zheng, who never committed a crime, spent four years in jail. Zheng’s lost years were of no consequence to the INS, which released him only after human rights advocates campaigned zealously for his freedom.

INS policy regarding "lifers" – or indefinite detainees – came into the public spotlight when detained Cubans took hostages and threatened to kill their Louisiana jailers.

After nearly a week, they released their unharmed hostages and surrendered, but only because the US had negotiated a highly unusual agreement with Cuba to accept their return.

Nationally the INS warehouses approximately 4,000 "lifers" – im
migrants who have been ordered deported but cannot to be removed for various reasons.

Some, like the Cuban hostage takers, have completed their criminal sentences, but remain jailed because their native countries have no diplomatic relations with the U.S. Some, like Zheng, with no criminal history, languish in jail because their countries refuse to accept them back. Others are stateless.

While taking hostages and threatening them with harm or death is deplorable, the Cubans in Louisiana believed they had nothing to lose. Theirs was a life sentence in the legal limbo of an INS quagmire.

How did the United States become a country that indefinitely locks up people who have committed no crime, or if they did have already served their sentence? How can a lifelong incarceration, not imposed by a court, be characterized as anything other than cruel and unusual punishment?
The answer lies partially in the tough 1996 Illegal Immigration Reform and Immigration Responsibility Act, which awarded the INS unprecedented powers to detain and deport individuals. The answer also lies partially with the INS, which consistently chooses to detain people who could be released.

The INS continues to hold "lifers" despite a mandate requiring a review of anyone with a final order of deportation who has not been removed within 90 days. INS’ own figures show that 34.6 percent of lifers whose cases have been reviewed have warranted supervised release.
Many local INS district directors, however, operate independently and often do not convene review panels.
Reviews, when they do occur, often are nothing more than rubber-stamped denials that cannot be appealed.

Under powers vested in it by the 1996 legislation, the INS has become judge and jury with totalitarian authority over immigrants. Under our system of justice judges normally hand down sentences, but under this system jailers, in effect, sentence detainees to indefinite incarceration. Thirteen courts now have ruled that the INS review process is inadequate.

The INS must establish rules for reviews in legally enforceable regulations, which will ensure uniform application throughout the country. The decisions must come from an impartial fact finder, with an independent review of negative decisions.

The Cubans took drastic steps because they thought they had nothing to lose and felt desperate. Dramatic confrontations or intensive advocacy campaigns by human rights advocates should not be the criteria to release detained individuals.

As the FBI agents surrounding the Louisiana jail heard there had been a deal struck ending the standoff, they cheered.

But as a nation, we should not cheer. This is a hostage taking that should have never begun. We should never be a nation that indefinitely incarcerates those seeking freedom.

This is just not the American way, and it must stop.