By Jake Rossen
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In Hassan's case, the danger would be heightened by the clan-based divisions in Somali society. The Daarood, his mother's clan, is a minority in southern Somalia and virtually nonexistent in Somaliland, in the northwest. Yet deposed dictator Siad Barre is a member of the Maheran, a subgroup of the Daarood. During the 1991 coup, the Isaaq clan, which controls Somaliland, fought against Barre's forces. The wounds remain fresh; even now the former dictator is blamed for massacres in Isaaq territory. If Somaliland's stability were to wane, it is likely that the Isaaq would seek revenge on the Daarood. By dropping Hassan into northern Somalia, where he has no family ties and no clan support, the U.S. would be delivering him to the enemy.
Because of his dialect, Hassan says, he would be immediately identifiable as a member of the Daarood and a resident of Mogadishu. He imagines that he might still find safety in Kenya--but that would depend on making it alive from the airport to the border.
In late April, McKenzie and Carr were ready to go to court. The only problem was that they weren't sure how to go about it; McKenzie had never taken a case to federal court. With Hassan's time running out, they enlisted the aid of Bob Gilbertson, a commercial litigator with the local law firm Robins, Kaplan, Miller, and Ciresi. On Hassan's behalf, the trio asked the court to temporarily delay his deportation. The crux of their case was that the INS should be barred from removing Hassan until he had had a chance to demonstrate that he would be persecuted if dropped into Somaliland. "We just wanted to make sure that he wasn't deported without a chance to protect himself," McKenzie says.
"The critical issue in this case," avers Gilbertson, "was whether the INS could send someone away without giving them a hearing. The INS district in St. Paul had developed a scheme by which they could do what the U.S. has recognized for ten years they could not do. I guess they were solving what they perceived as a problem. They wanted to declare by fiat that Somalia is Somalia is Somalia. But that's an end run around the established principle that we simply can't deport people to Somalia because there's no government and no safety."
The April 28 brief prepared by McKenzie and argued by Gilbertson asserted that "the fact that the INS St. Paul District appears to be the only district in the United States removing aliens to Somalia at this time raises serious questions as to the lawfulness of this practice. Somalia is currently in a state of anarchy, with no recognized government or other competent authority in place to perform such basic functions as issuing passports to its citizens....This calls into doubt [the INS's] contention that [Hassan] will in fact be returned to Somalia."
Hassan's only chance, McKenzie says, was that the judge would agree that removal to Somaliland was not legally equivalent to removal to Somalia. The government argued simply that Somalia and Somaliland are the same country, and thus both viable destinations for Hassan. In addition, because of the 1996 changes to immigration law, the INS's attorney contended, the federal court had no authority to challenge the immigration court's decision to deport Hassan.
For the first time since Hassan's arrival in the United States, the law came down on his side. Federal District Court Judge Michael Davis decided that Hassan did indeed have the right to contest his deportation to Somaliland. "The court finds that [Hassan] has asserted a colorable constitutional claim," Davis wrote. "If [he] has evidence available which will support his fear of persecution if returned to the Republic of Somaliland, due process requires that he be provided the opportunity to present such evidence. There can be no dispute that [Hassan] has not yet had the opportunity to present such evidence. For this reason, the court also rejects the government's argument as to exhaustion of administrative remedies."
The decision was a significant victory. According to Justice Department statistics, court reviews of deportation cases have long been roughly ten times more likely to favor the government than the immigrant. Since the 1996 immigration reforms, the disparity has become even more marked. McKenzie and Carr were ecstatic; it was a temporary reprieve, but it gave them time to challenge Hassan's deportation.
The INS does not take defeat well, however. Last week Assistant U.S. Attorney Robyn Millenacker confirmed that the INS was "very interested" in appealing Davis's ruling. Such an appeal would have to be filed in the Eighth Circuit Court of Appeals by August 25. If Davis's ruling were overturned there, McKenzie and Carr could take their case to the U.S. Supreme Court.
It's only a possibility, McKenzie acknowledges, but it may be Hassan's last resort. In either case, she says, both Hassan and his lawyers have come too far to quit: "Abdul has a good sense of reality and of what's possible. Mostly, though, he's willing to fight it out. That's important because the process can get very frustrating."
Hassan's struggle could have wide-ranging implications, however. Since the 1996 immigration reforms, federal courts have been chipping away at the notion that courts can't review INS decisions. In April, for instance, the Ninth Circuit Court of Appeals in San Francisco challenged the "prolonged and arbitrary detention" of criminal aliens who have served their sentences but cannot be deported for political reasons. The decision prompted the INS to institute case-by-case reviews for the 3,800 such "lifers" currently in custody nationwide.