No Place Like Home
Abdul Juma Hassan crossed the border on March 28, 1996. He brought with him only what he could carry--a spare change of clothes in an old suitcase, and no more than $300 stuffed into his pocket. Like most of the people on the twilight run between Mexico and Laredo, Texas, he entered U.S. territory illegally; he'd used a counterfeit passport with the name "John Camel," purchased on the black market in Kenya, to fly into Mexico City, but he had no other identification. And, like most of those who risk the passage, he had a vague inkling of what life would be like on the other side. He was certain only that it would be better than what he was leaving behind.
Eight thousand miles away in Mogadishu, where Hassan had lived the first 24 years of his life, clan warfare had turned the streets into a lawless urban inferno. "I was tortured, humiliated, and almost killed by Hawiye militia mobs," he wrote in his July 1996 application for political asylum. "If I go back to my homeland, Somalia, I will be executed as they did to my mom and my two brothers. The killers who killed my mom and two brothers are out there, and they will kill me."
Like many families in Somalia, Hassan's was caught in the crossfire of the 1991 coup that precipitated the country's descent into anarchy. His mother was a member of the Daarood, who were slaughtered en masse by the rival Hawiye clan during the ensuing social collapse. Hassan, interrogated and beaten by Hawiye thugs and fearing that he, too, would be murdered because of his matrilineal clan affiliation, fled Mogadishu in early 1991 for Ethiopia, and then Nairobi, Kenya, where his father had settled after the coup. "Even though I love my country," he later wrote, "it is clear that Somalia is not save [sic] place for anyone to return to. Mogadishu, Somalia, is the only place that I know, born, went to school, lived, grown up, and none of [my] family lives there now."
Staying illegally in Kenya, and with no home to return to, Hassan borrowed $400 for false travel documents and $1,200 for a plane ticket. Though he had no family in America, he imagined that if he could make it to U.S. soil he would at least be safe. He was prepared to take the risk. He was 26 years old.
In Texas Hassan volunteered his story to the U.S. Immigration and Naturalization Service--what he'd witnessed, why he'd run, and how he came into this country. He was frightened then, but also determined not to show it. In fragmented English, he recounted his escape from Somalia as it had happened, without dramatic embellishment or appeals to sympathy. He had no reason to think that he would not be believed; he still had the scars of the Hawiye beating on his body, after all. Nor did he consider that his composure would later be used to discredit him.
At first, life in the United States was much as Hassan had dreamed it. For four years he bounced between Texas, North Carolina, and Georgia, staying with friends until he could secure a work permit. He slept on couches, studied English and computer science from old textbooks, and finally landed a good job as a computer technician in Minneapolis. After he'd settled in, he found himself an affordable one-bedroom apartment and bought a car. He was rightfully proud of the existence he'd carved out for himself. "I feel that I'm [a] very productive, model taxpayer who never run any trouble with the law and have no bad attention toward any one," he wrote in a letter to the INS three years after arriving in the country.
Then things fell apart. On April 4 of this year, Hassan was checking in, as he did each month, at the INS office in Bloomington. Without any warning, the INS caseworker Hassan was reporting to accosted him, put him on the phone with his boss and ordered him to quit his job. He was taken into custody and told that within a matter of days he would be on a plane to a remote province of Somalia in which he'd never set foot, and which is controlled by a rival clan.
His crime? Hassan, like all Somalis fleeing the collapse of their state, had been unable to obtain a passport. Because he didn't have proper documentation, he had been forced to enter the United States illegally. His punishment? The INS had determined that Hassan had to go, despite the fact that his homeland has no government to protect him. Today he is in prison, awaiting deportation to a country that no longer exists.
INS case No. 74682301 arrives in the interview room of the Minnesota Correctional Facility at Rush City wearing white sneakers and a pale blue, prison-issue short-sleeved shirt. The space into which he's escorted is antiseptically bare and minimally furnished in gray institutional tones. It's like the waiting area at an airport--except that no one departs from here, and no one arrives, either, without first cutting through a good deal of red tape. Outside the reinforced Plexiglas window, a marshy landscape quivers under a cloudless azure sky. Abdul Hassan has not walked freely beneath it in four months. Between him and liberty, there is a quarter-mile maze of corridor blocked by a series of four automated steel doors, a platoon of guards built like sides of beef, and the full force of the United States Immigration and Naturalization Service.
The state prison at Rush City is one of the facilities in which the INS warehouses immigrants it plans to deport. There are, at present, 20 other Somali men awaiting deportation within its walls, some of whom have been convicted of felonies and some who, like Hassan, are merely victims of fortune. Most do not speak the same dialect. Some have never set foot on American soil; they were intercepted by INS agents at the Minneapolis-St. Paul International Airport and taken directly into custody. According to Hassan, one man who has been in custody for two years has lost his mind while in jail.
Hassan passes the time like any other prisoner. He keeps to himself, plays cards, and reads pulp mystery novels when he can get hold of them. He worries sometimes about his car and his apartment, though he's arranged for a friend to look after both while he's away. Mostly he mulls over his uncertain future.
Even in the baggy prison garb, Hassan's carriage is stalk-straight. He speaks in a lilting, unaggressive voice, with the exacting grammar of the self-taught. His eyes are agile, and, though he is soft-spoken, there is also something fiercely independent in his demeanor--the same something that might drive a young man halfway across the planet and into permanent exile. It's also this, in all likelihood, that has allowed him to endure his increasingly tangled legal troubles. "The perception people have is America is free, everybody has money," he muses. "I never thought I'd get this kind of treatment in America. I never thought in all my life I'd be in prison. I never committed a crime. I lead a decent, honest life with a good professional job. This is a mental war they are making. You see these walls staring at you 24-7 and you wonder if you're going to lose your sanity."
Hassan speaks about the past in an unaffected, matter-of-fact way, like a man describing a dream or something he has seen on television. In December of 1990, he begins, Hassan and his family began to hear reports that troops from the USC--the United Somali Congress, a heavily armed Hawiye-led insurgent militia based in the northern part of the country--were encroaching on Mogadishu. Throughout the month, house-to-house fighting erupted sporadically, moving ever closer to the center of the city and the palace of Siad Barre, Somalia's corrupt dictator. "Artillery started shelling randomly," Hassan recalls. "Everybody was shooting with small arms everywhere. Everybody was running every direction. They were dying like bugs."
In January, under pressure from the USC, Barre fled the capital, and the last vestiges of civic authority collapsed. The USC itself split into two factions according to clan affiliation, and both sides began shelling each other from the outskirts of the capital. The civilian population was trapped in between. By the end of 1991--as the U.S. debated military intervention and the United Nations balked--14,000 civilians in Mogadishu had been shot dead. The violence had spread to other areas of the country, as well; Hargeysa, in the north, had been virtually flattened by artillery in late 1988, with a death toll estimated at as high as 50,000. Elsewhere, death squads emerged by night to hunt and summarily execute members of rival clans. For three eerily silent nights in December 1992, residents of the port city of Kismayu listened to the echo of gunshots on the outskirts of town. On the fourth day, they began to find the bodies of more than 100 prominent local men who had been dragged from their homes, blindfolded, and shot in the head.
Hassan remembers his last days in Mogadishu as a chaotic blur--a tsunami sweeping through the city and washing away the ordered life he'd known. People whose homes had been destroyed or looted were pouring into the streets, he recalls, while gunmen from both USC factions and Siad Barre's retreating army peppered the crowds indiscriminately with machine-gun fire. "I didn't know what was going on," Hassan says, "The whole thing was tribe-based--Hawiye going north and east, and Daarood going south. You tried to find people who could hide you till you were fortunate enough to get out. You go to places where people were meeting, find a place of safety. Then, later, you found out about your family."
In mid-February 1991 Hassan's family abandoned its clothing boutique to looters, and scattered. Along with thousands of other refugees crowded into pickup trucks or traveling by foot, Hassan made his way south, where makeshift squatter settlements had sprung up along the mountainous Kenyan border. He was lucky; he made it into Kenya, where a former business partner of his father's gave him shelter. Only then did he learn that his mother and two brothers had not escaped.
Here Hassan stops abruptly. In his original asylum application, he'd said that his mother was killed by a USC mortar that fell on her home. In fact, he is not sure how she died; he'd already fled, and he'd only heard the details secondhand. He will not elaborate on them now; his mother and brothers are among the unnumbered dead, and there is nothing more to say.
Hassan does not expect sympathy in exchange for his story. He isn't the sort of man who weeps, he explains simply. "Maybe I do not look like a refugee," he says. "Maybe they expect me to act a certain way, and I do not." To survive in exile, Hassan has amassed deep reserves of confidence and patience. Paradoxically, this same self-possession may have gotten him into his current predicament.
In his initial July 1996 interview, Hassan described his exodus to an intake officer at the INS asylum unit in Houston. "He was beaten on the front and back of the head with a baseball bat and gun and kicked," the officer noted in her report. Though she found no reason to doubt Hassan's claims, neither did she determine that his Daarood clan affiliation would constitute a "well-founded fear of persecution" if he were returned to Somalia. "Applicant has failed to establish...that the Hawiye remain inclined and motivated to harm him."
The Texas INS officer also offered a recap of the political situation in Somalia. "Current country conditions show that the Hawiye exist in the central region stretching from Mogadishu, and the Daarood are located in the northeast horn and along the Kenyan border. The other major clans primarily occupy the other remaining areas of Somalia. The well-foundedness fear would depend on the nature and durability of the alleged threat and the applicant's physical location in the country.
"Applicant failed to prove that he could not safely reside in other areas of Somalia not occupied by the Hawiye such as in the northeastern part of Somalia and near the Kenyan border," the report concluded, before referring Hassan's claim to an immigration judge.
Hassan, who then spoke only a broken facsimile of English, at first thought the interview went well. He has since grown more cynical about the INS asylum application process. "To be honest with you," he says, "I believe they have a quota system that's basically random. I answered all her questions and she seemed sympathetic. But it's based on the fact that they simply have to accept a certain number and turn a certain number away. So she saw me and decided that I would be one of the ones to be turned away."
In fact, INS officials assert that there is no quota, and that each case is evaluated on its own merit. Yet statistics show that between 1995 and 1999, almost exactly half of Somali refugees filing for political asylum were denied. Jennifer Prestholdt, director of the refugee and immigrant program at the Minnesota Advocates for Human Rights, says that while there may not be an official quota system, the massive influx of East African refugees might also prompt INS officials to weed out less well-documented claims. "There's a lot of concern about fraud in the Somali community because so many people fled for their lives with no proof of their identity," she says. "With so many Somalis here, there's a tendency to rank the strength of those cases."
Hassan, who'd escaped without even so much as a family photo, faced the same incredulity at his immigration court appearance. The hearing was held at the Atlanta office of the Executive Office for Immigration Review, an administrative court dealing solely with immigration matters, which is separate from the INS (though both are under the aegis of the Department of Justice). Hassan had not yet received a work permit and could not afford to hire a lawyer; the volunteer attorney with whom he ended up was inexperienced and uninterested, and, he says, simply didn't show up for his court date.
Instead, he represented himself. According to Hassan, the judge took an immediate dislike to him. "He thought, 'This guy is an arrogant guy.' He basically threw my case out. Maybe he's seen too many people crying; I'm not that kind of person. That's not my way of dealing or getting sympathy."
Indeed, in his decision the immigration judge, William Cassidy, wrote that Hassan "was annoyed to the point of arrogance and anger when questioned regarding the nature of his claim." Cassidy further suggested that Hassan might not actually be Somali. Because of his lack of documentation and the ease with which he'd obtained a Kenyan passport, the judge speculated that he was a Kenyan citizen. Nor did Cassidy accept an affidavit from two of Hassan's friends supporting his claims of Somali nationality. "There is nothing showing in the course of the application to identify these people as Somali," he wrote. They couldn't refute his opinion because none of them had passports: It has been virtually impossible to secure travel documentation in Mogadishu since 1991.
The judge, bolstered by his impression that Hassan was educated and "someone of means," opined that he would not face persecution if returned to Mogadishu, Kenya, or Ethiopia (though he could not reside legally in either of the latter). He noted, also, that because Hassan had used a counterfeit passport to cross the border, he had broken U.S. law. (Most immigration lawyers agree that such an infraction should not be the sole basis for denying asylum.) "As previously stated," Cassidy concluded, "the burden is upon the respondent to show what his true nationality is. The Court did not find that he has done so."
Cassidy noted that while some Somali refugees are temporarily protected from deportation because of the civil strife in their homeland, Hassan was not, because he'd arrived well after the civil war began. "In abundance of fairness," he ruled, the court would overlook the "serious violations of immigration laws" Hassan had committed by sneaking into the country, and delay deportation for 90 days.
Understandably, Hassan was underwhelmed by the abundance of Cassidy's fairness. Though his legal options were running out, he still had one chance to remain in the country. If he could successfully challenge the immigration judge's decision, he might win permission to stay in America at least until the political situation in Somalia had calmed. So, in February 1997, Hassan filed a petition with the immigration court's Board of Immigration Appeals. Though he didn't know it, precedent favored his case: In a 1996 decision involving a nearly identical situation, the board had determined both that fear of clan-based violence constitutes a legitimate basis for an asylum claim and that "compelling humanitarian considerations" could mitigate immigration court decisions.
Around the same time, Hassan secured a temporary work permit. He heard from a friend that Minneapolis was a good place to look for a job, and he moved north. He dutifully filed a change of address with the INS, but, thinking that the INS and immigration court were one and the same, he failed to notify the board of appeals.
When he arrived in Minnesota, Hassan was told to check in with the INS office in Bloomington once a month. "They said, 'Don't commit no crime, and you'll have no trouble with us,'" he says.
Hassan enrolled in classes at Hennepin Technical College, found computer work at the Carlson Companies, and, later, a third-shift job at Traveler's Express in St. Louis Park. At the last job, he was an exemplary employee, he says, and, in April, was scheduled for a promotion. Meanwhile, and also unbeknownst to Hassan, the Board of Immigration Appeals had dismissed his petition because its officials couldn't contact him. The immigration court issued an order of deportation, and, when Hassan went in for his monthly check-in, an officer made him quit his job on the spot. For Hassan, who had meticulously built up a professional reputation, the ensuing conversation was humiliating. "My boss was very disappointed," he recalls with a suddenly mournful expression. "He told me, 'I had a plan for you.' I felt so terrible because it was such short notice. It wasn't right. I said, 'I hope you can understand it's not me.'"
Hassan's life was thrown into chaos again--this time by a bureaucratic snafu.
Outside the headquarters of the Somali Community of Minnesota in south Minneapolis, a clump of new Americans are chatting, enjoying the midmorning sun and watching a backhoe take giant bites out of Franklin Avenue. Inside, Mohamed Essa Dhiff is settling in for a long day. His office--unadorned white cinder-block walls and towers of paperwork--and his stylish earth-toned suit present a contrast to the buzz of voices and silky traditional Somali garb that predominate in the crowded waiting room. Essa is almost always busy; the Somali Community, which he and his wife founded ten years ago, is the largest such organization in the nation, offering services ranging from employment referral and domestic counseling to English classes and advice in negotiating the labyrinth of U.S. immigration law.
Essa's modest community center has become a sort of Staten Island for Somalis in Minnesota, and, since 1991, Essa has seen successive waves of Somali immigrants come through his office. He has, he says, heard hundreds of stories like Abdul Hassan's. The details vary and the faces change, but the circumstances are painfully familiar: a nightmare litany of lost children, murdered friends, and despoiled lives. "In the refugee camps," he says, "there was no health care, no schooling, no sanitation. Though people were safer, life was hard. Kenyan officials asked for bribes. Women were taken and raped. It was worse in some ways than war."
Despite the traumatic history of Somalia, however, its emigrants have flourished in Minnesota. Drawn at first by the prospect of jobs in rural turkey-processing factories, Essa explains, thousands of Somalis gravitated to the Twin Cities. Immigration to the state peaked in the mid-Nineties, and there are now 55,000 Somalis living in the area--the largest enclave in the United States. Despite language barriers, Essa continues, Somalis were quick to join the work force. "There are 200 Somali businesses now," he says. "I'm proud of my people. They are very hard-working."
Yet it hasn't been easy. According to Essa, young Somalis here are often caught in a profound clash of cultures. In addition, non-English-speaking immigrants are often at a loss to understand the asylum process. "There are a few illegal Somalis who are afraid to go and seek asylum," he says. "They have no hope for immigration because they think they will be deported. It's disastrous. They worry, get ulcers. They risk everything to join their loved ones, and they're deported back."
As in Hassan's case, the problem is exacerbated by the fact that few Somalis arrive with proper identification--it has been impossible to get a birth certificate or passport in Somalia for a decade, and some rural people are not even sure of their birth dates. Though Essa's organization offers affidavits to support the claims of Somali asylum-seekers, he asserts that the INS tends to view the absence of proof of identity as a sign of fraud. Along with recent changes in immigration law, that makes it easy for the INS to deport people who make mistakes or who are unable to substantiate their stories.
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act is beginning to affect the Somali community, Essa opines. Under the measure, illegal immigrants and those convicted of felonies or crimes of "moral turpitude" (everything from drunk driving to domestic abuse and drug charges) are subject to mandatory detention and deportation. When the INS is unable to return aliens to their country of origin--Vietnam, Cuba, and the former Soviet Union, for example, do not accept criminal deportees--immigrants who have done time in U.S. prisons and have been released can then end up serving de facto life sentences. The INS can release these "detainees" on bond if it chooses, but frequently doesn't.
The 1996 law also made it easier for the INS to remove--kinder, gentler nomenclature for deportation--immigrants who, like Hassan, had not been convicted of any crime. The act stated explicitly that decisions of the immigration court were not subject to review by federal judges--in effect denying constitutional protection to illegal aliens; the U.S. Supreme Court, led by Justice Antonin Scalia, concurred. Immigrants like Abdul Hassan more than ever are at the mercy of the U.S. Department of Justice, which acts as both prosecutor and judge in their cases.
Not surprisingly, removals by the INS have increased dramatically every year since 1996--the result of a congressional mandate to deport noncitizens convicted of crimes. In 1996 eight Somalis were deported; by the first half of 2000, that number had risen to 26. Melanie Nezer, who follows INS policy for the Washington, D.C., nonprofit Immigrant and Refugee Services of America, doubts that there is any policy to target Somalis. But, she says, individual INS officers may choose to focus on immigrants whose asylum claims have been denied. "There's a balance between the U.S. wanting to deport criminals, and the obligation to protect people who face persecution. The local districts set their own enforcement priorities, though, so it's difficult to monitor what's going on at a local level.
According to Essa, the INS's St. Paul office is the only branch in the United States sending Somalis back to Somalia, rather than to more stable countries. In fact, the last three years show a marked increase in Somali removals. Until 1997, the INS here hadn't deported any Somalis. Then, in 1999, 13 were removed, including six who had not been rendered automatically deportable by their criminal records. Already in 2000, three of the seven Somalis deported have been noncriminals. Dean Hove, deputy director of the St. Paul INS district, asserts that his office is merely enforcing the decisions of the immigration court. "We have about 160 Somalis in custody," he says. "Some are aggressive felons who are a risk to society. If we have contact with them, we remove them."
But a shifting INS policy toward Somali asylum seekers would not be limited to criminals. Because only those who arrived before 1992 are eligible to remain in the U.S. indefinitely, and because half of all asylum applications from Somalis are denied, there are potentially thousands of Somalis who could be deported. Their only crime, in many cases, is entering the United States illegally, which, because Somalia does not issue passports, is the only way for them to get here. In essence, every Somali refugee who enters the United States is a criminal until they're granted asylum. It's quite a catch-22.
"There are a number of people being held in jail," says Essa. "We're trying to explain that there is no Somalia, no government, so they can't send people back. People asking for asylum aren't criminals. But maybe they don't tell their story the right way, and the INS feels it's suspicious. Maybe the INS officer is in a bad mood and decides to deny asylum. He has death and life in his hands."
Essa also disagrees with the assertion that Somalia's political situation has calmed since the United Nations' 1993 military intervention. Though the fighting is officially over--or, at least, no longer newsworthy in the eyes of the West--there still is no government, banditry and repression remain rampant, and clan-based reprisal murders are all too common. "For a 20-year-old with family here, if he is sent back, he can be killed," he says. "The greatest country in the world is putting us into the hands of criminals."
The lives of Abdul Hassan and Michele McKenzie intersected by chance. When he was first taken into custody, the young Somali saw McKenzie's phone number at the Minnesota Advocates for Human Rights posted on the jail wall. Frustrated and confused by his INS reversal, he decided to call.
When McKenzie first spoke to Hassan, she recalls, his deportation seemed a fait accompli: The INS had announced its intention to load him onto a plane by the following Saturday, and, short of an injunction from a federal court, he had run out of options. McKenzie was impressed by Hassan's poise and spotless record, though, and she set to work calling other immigration attorneys and looking for a loophole that could save her client. Three days before Hassan's scheduled removal, she found it.
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.
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.
According to Gilbertson, Hassan's case could further erode the INS's unchecked authority. "Since the draconian 1996 reforms," he says, "the government has taken the position that few decisions can be reviewed by the court. It's an attempt to eliminate constitutional rights by statute. The government simply can't do that."
If the INS appeals, Gilbertson expects Hassan to win. But he also predicts that the constitutional issues raised in Hassan's and similar cases will eventually lead to a Supreme Court challenge of the 1996 law--specifically INS insistence that its decisions can't be reviewed.
Meanwhile, however, Hassan will remain at Rush City. The INS can release noncriminal deportees if they pose no threat to public safety. But the agency has determined that Hassan would be a "flight risk" if released--though, as Gilbertson notes, he has no criminal record and has never consciously thwarted U.S. immigration law. "What they are doing is outrageous," the attorney says. "The INS can't argue with a straight face that he's a danger to the public. They're holding him simply to increase the pressure on him. I really can't begrudge the government's decision to appeal this case. But to keep him in custody while they're appealing it is a contemptible exercise of their discretion."
Hassan himself now considers that he is engaged in a war of attrition. "I try to be rational in here," he says, gesturing wanly at the sterile walls that could demarcate his life for years to come. "I've never been handcuffed before this. I'm a person of no means. Why do they spend taxpayer money to abuse someone like me?"
Even as he speaks, though, his mood shifts. It's not one of resignation or indignation, but of tempered and tested patience. Perhaps you cannot challenge the U.S. government when your only appeal is to compassion. Still, as Hassan says, he has no choice but to endure, nowhere to go now but forward.
"They have a surplus of Somalis here," he says, "so Somaliland is a human dumping ground. I am a number to them."
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