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AI: So, excuse me, about the Somali people who are being detained and who are still under threat of possible deportation, what kinds of rationale have been given for detaining them and deporting them back? It's a vague connection, a possible connection that individual Somali people may have with some terrorist network? I'm not sure if I understand.

PJ: Yeah, these are, well, the Somalis that were -- what basically happened after September 11th is that the Attorney General's office started using immigration violations as a means to get people that were Arab or Muslim out of the country. So even though they weren't connected to terrorism, they used a minor immigration infraction to say that these people are a potential threat to national security. And that has since been expanded to Haitians, for example, and other immigrant communities that have nothing to do even with so-called "terrorism." They're not connected in any way to those countries that the government seems to think are involved in this. So the rationale for holding people was because they had final orders of deportation. Now, if you understand the immigration system, you understand that eighty-five percent of people who go through the immigration system go through pro se, they're completely unrepresented. And many times their immigration violations are because they didn't know that they had a hearing, they didn't show up, they don't have an attorney, they, all kinds of things. There are some number of people that have criminal backgrounds, and again, they haven't gone through the process system. Many of them have actually, if they have a criminal violation, they've served their time in the justice system, the criminal justice system. But then they still get deported because our 1996 laws changed that and so even for minor violations, it now qualifies as a deportable offence. So the technical basis for holding people was because they had final orders of deportation.

We have a law in, in this country, and it was a case that was argued before the Supreme Court called Zadvydas, which said that if you were an immigrant who was being detained, you could not be detained for more than six months if the government could not affect your deportation. We have another law that says that you cannot be deported back to a country that does not officially accept you back. So in the case of Somalia, the loophole that we had was that there is no functioning government in Somalia. It's a civil war going on, there is no government, we have no diplomatic relations and there was no government to accept people back. We also had proof that there was a Somali man in Minneapolis who was deported back in the spring of 2002 -- shortly after the September 11th attacks -- and he was found dead. And there was a BBC report him on because, you know, if people are deported back, because of the tribalism and where they're deported to, they most likely will be killed. Many of them were not even delivered by the U.S. government to Somalia, they were taken across the border to Rwanda or Burundi and made to find their way across the border back into Somalia.

So our class-action lawsuit -- so the government's rationale for holding people was on their technical immigration violations. The case that the government made before the district court judge when we filed our class-action lawsuit is specifically that this nation is engaged in a war on terror, that we have to be careful of who we allow to stay in this country, that Somalis are Muslim, that they are from Somalia, a country where al-Qaida is known to have strong ties -- this was the government's argument -- and therefore, having Somalis who had final orders of deportation in this country posed a significant threat to national security. And the government made the argument that in order for the Attorney General to fight the war on terror, he needed deportation as a tool in his toolbox. That was literally what they said. The judge, Judge Marsha Pechman, threw out that argument and very eloquent response during the oral arguments, she said, "You know, I have searched your documents" -- she was talking to government. She said, "I have searched your documents for the link -- first of all between Somalia and al-Qaida, because there's anecdotal evidence that al-Qaida is there, but that doesn't make Somalia a terrorist country. Secondly, the link between al-Qaida and Somalis living in the United States; we see no, I see no legitimate argument that Somalis are by the very nature of being Somalis, or from Somalia, even if you were able to make the link that al-Qaida was strong there, there is no argument for why Somalis would be a threat to national security. And third, if you really believe that Somalis here are a threat to national security, then why would you deport them back to Somalia? Because there, they're just gonna be in cahoots with whatever forces you think are out there, anti-U.S. terrorism forces that are out there, so why wouldn't we keep them here?" And she really threw out all of the government's arguments.

And what was interesting is in the Ninth Circuit case, which they also, the government also lost, but they didn't use that argument quite as strongly. They used other things that had to do with deportation and needing to get, get people who had not obeyed the law to leave. But again, that's a misnomer because many of the people that pleaded guilty, for example, to minor criminal charges before 1996 did so thinking that those offenses then wouldn't be deportable. In 1996, when Congress rewrote those laws, they essentially said, reclassified certain offenses that were not deportable offenses as deportable offenses. So you could have pleaded guilty to shoplifting, thinking that you were just gonna serve a couple of months in jail, that ended up being an deportable offense, grandfathered back. So it really put a lot of people in terrible, terrible positions. So that was the government's argument.

And there is now a case pending, because our case was in the Ninth Circuit. There was a case pending in the Eighth Circuit, a similar case of Somalis, and they lost in the Eighth Circuit and the Supreme Court has taken up that case. It's called Jama, has taken up Jama in the Supreme Court and it looks likely that they're gonna be hearing that case in November. So it could have implications. It will have implications for our case, even though that covers just the person that's named in that case, it doesn't cover necessarily all of the folks that are in our case. So there's a lot of things that are still up in the air, but that argument that the government made about people being a threat to national security is one that we've heard many times.

So last year there was a Haitian refugee, a Haitian asylee who was granted bail by the Immigration Appeals Court and told to be released because he didn't pose a threat to national security and he couldn't... while he was waiting for his asylum papers to be granted. And Ashcroft, Attorney General Ashcroft, basically wrote an opinion reversing the Immigration Appeals Court decision and saying that that person had to be kept -- it was a young Haitian man -- had to be kept in detention because he posed a threat to national security. And since that time there has been legislation, or there has been policies passed by the Department of Justice that say that all asylees must stay in detention while they're waiting for their asylum paperwork to be filed and to be processed, which is a travesty because the INS is so behind and in fact, a judge just ruled on the behavior of INS in processing paperwork saying that it's a miserable performance that we have people who sometimes wait for five or ten or twelve years to get their paperwork processed. And according to Ashcroft and all those people, if you come in as, as an asylee now, you have to be, you have to remain in detention until your paperwork is processed. So really what Ashcroft has been doing is what, similar to what Bobby Kennedy, when he was fighting against the Mafia, called "spitting on the ground charges." So you pick somebody up for a minor immigration violation and use that as a way to, to deport them.

And when you think about 1942 and you think about Executive Order 9066, what's interesting to me is a parallel between, you know, that executive order in itself wasn't discriminatory, it was the way that it was implemented that was discriminatory. And I think many of the things that we've seen, the orders themselves are not necessarily discriminatory, but it's how it's implemented that is discriminatory. And that's been true across the board in terms of all of these things that we've seen affect the rights of all of us but disproportionately the burden falls on Arabs and Muslims and Sikhs and other immigrants.

AI: For example, going back to your description of the special registrations and detentions, that there were only certain countries --

PJ: Yes.

AI: -- from which immigrants were required to do the special registration.

PJ: Yeah, yeah, that's right.

<End Segment 12> - Copyright © 2004 Densho. All Rights Reserved.