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McKenzie and her colleague Audrey Carr are now convinced that by deporting Hassan, the INS was skirting immigration law. And they are determined to stop it--even if it means fighting to the steps of the U.S. Supreme Court.
McKenzie's office in the Flour Exchange Building is modestly furnished and accoutered with posters decrying child labor, and mimeographed maps of Kosovo marked with push-pins to identify hot spots. Though she works only a few yards from the federal courthouse in downtown Minneapolis, she had never prepared a case in federal court before Hassan's. "In terms of the asylum process," she begins, "it's an extremely complicated situation. There are forms to fill out for even the simplest process. If you don't speak English, that can become extremely difficult."
McKenzie draws a fat file out of a cabinet and slides it onto her desk--the trail of INS paperwork documenting Hassan's official existence since 1996.
"It isn't that the INS is malevolent," she continues. "They aren't outright lying to people. But the nature of the asylum process is very prying and personal. People feel like they shouldn't have to tell what happened to them. It can be demeaning to have to prove what's happened to them. For people like us, who've lived their whole life in the U.S., we just have no idea what they've gone through.
"It's typical of asylum seekers to be reluctant," she explains. "They're put in a position of reliving traumatic events in picture-perfect detail, and it can affect their ability to tell their story effectively. In this case, Abdul obviously didn't want to talk about what had happened to him. He didn't give a lot of detail. Well, from the INS perspective, he must be lying."
A few minutes later, Carr arrives and takes a chair in the corner of the office. About a year ago, she says, the two young attorneys began hearing through the legal grapevine that the INS was removing aliens to Somalia. "It was something that wasn't happening elsewhere," Carr chimes in. "We asked [Curtis] Aljets [the director of the local INS district] about it, and he confirmed it in what I thought was a very cocky manner. They'd thought of this clever plan to get rid of people, but they wouldn't tell us how they were doing it."
"We knew they weren't on flights to Mogadishu," McKenzie offers, because there are currently no commercial flights into the capital.
"Right," says Carr. "We knew something was going on. But they were reluctant to tell us. If they would've have explained what they were doing right off, we might never have pursued it."
What McKenzie and Carr learned--and what would eventually form the basis of their challenge to Hassan's removal--was that the INS had been dropping aliens in Somaliland, a province in northwestern Somalia. Formerly a British colony, Somaliland declared independence from the rest of Somalia in 1991, shortly after war broke out. Since then, a fundamentalist Muslim, clan-led junta has restored a semblance of military and civic order. Despite the region's relative stability, however, the United Nations, under pressure from other Somali factions, has refused to recognize Somaliland as an independent nation.
Somaliland's intimations of statehood are significant, because if it is, in fact, an independent nation, the INS could not legally drop aliens ordered deported to Somalia into Somaliland. The INS's Hove argues that the State Department's position is that Somaliland remains part of Somalia, and is therefore a perfectly acceptable destination for removed aliens. Though he confirms that the INS may send deportees through Kenya or elsewhere to get to Somaliland, he declines to explain the logistics. "The routings vary depending on what arrangements we can make with different airlines," he explains tactfully. "We recognize that, for the most part, Somaliland has probably been the safest area to return someone to. Other than that, we're just following the judge's orders and removing those who we can to wherever we can."
McKenzie and Carr saw the loophole they'd been looking for; if Hassan were dropped into Somaliland, they argued, the INS would essentially be defying the orders of the immigration court. "The clans in Somaliland fought against the Daarood during the war, so we felt like there was a possibility that someone from the Daarood clan would face persecution in Somaliland," Carr explains. "Our concern was that it would be like dropping someone from Vietnam into Cambodia."
McKenzie agrees. "We felt like Abdul should at least have an opportunity to raise these issues in court," she says. "What they were doing was dropping him off randomly in a different country." Worse, the two add, they heard that the INS's St. Paul office was getting ready to train other immigration agents throughout the nation to do the same thing. It could affect the Somali community, Carr says, but no one knew about it.
In addition to sidestepping the immigration court's decision, Carr asserts, deporting aliens to Somaliland violates international human rights law. The United States signed a 1967 United Nations agreement stipulating that a refugee cannot be transported to the "frontiers of territories where his life or freedom would be threatened." Because Somalia's condition is still classified as "anarchy" by the U.S. State Department, it stands to reason that an alien dropped at the Kenya-Somali border would face considerable peril, the attorneys say.