Foreigners Fighting Orders to Leave U.S. May Face Jail

Tens of thousands of foreigners now allowed to remain free while they pursue immigration appeals could face arrest and jail under a major policy change being tested by the federal government.

Operation Compliance, introduced with little fanfare this month in Atlanta and Denver as a pilot program, is designed to curb the chronic problem of “absconders” -- an estimated 300,000 to 400,000 scofflaws are now in the country in defiance of orders to leave.

Under the pilot program, Immigration and Customs Enforcement officers are assigned to immigration courts and promptly arrest people who are ordered to leave the country after losing their cases, which are usually civil, not criminal. Those taken into custody are held in immigration detention facilities until they exhaust their appeals or post bond.

“It’s a great initiative, and if it was implemented nationwide, it would be a great step,” said Steven Branch, a senior immigration enforcement official in Washington. “It’s a drastic step in minimizing any future growth of absconders.”

But immigration lawyers say the program has singled out people with no criminal records, who are pursuing their rights within the U.S. legal system. Often, the lawyers said, bail is set higher than those detained can possibly afford. They also argue that Operation Compliance gives no consideration to asylum-seekers, whose accounts of persecution in their homelands are often heart-wrenching but sometimes difficult to assess.

Previously, foreigners who appealed an immigration decision that went against them were allowed to remain free. Those who lost and agreed to leave the country voluntarily were generally given time to get their affairs in order, usually after posting a modest bond.

Such forbearance has led to abuse, the government says. Officials estimate that nearly 90% of those who are ordered to leave the country but not detained end up staying in defiance of the law. By contrast, foreigners taken into custody by the government are almost always successfully deported.

“What we are doing is having the alien comply with the law (and) saving the taxpayers’ dollar,” Branch said. “Instead of these people receiving an order and then blatantly disregarding it by staying here, us taking them right there allows us to stem the growth of any additional absconders.”

A smaller-scale test of Operation Compliance was carried out last fall in Hartford, Conn., with inconclusive results. If all goes well in Atlanta and Denver, however, the program could be expanded to larger cities.

Eventually, it could become part of Homeland Security’s strategy for expelling all foreigners who are found deportable, a six-year plan known as “Endgame.”

But it remains unclear whether the immigration system could handle such a program on a national scale.

Immigration authorities only have about 20,000 detention beds available nationwide at any given time, and priority is given to detainees with criminal records. Adding the civil cases from immigration courts could swamp detention facilities, particularly in immigrant hubs such as New York and Los Angeles.

Nationally, judges order about 130,000 deportations a year in immigration court proceedings. Last year, the government deported about 182,000 foreigners, nearly 60% of whom were not criminals.

“It’s a poor use of government resources to keep these people in jail indefinitely,” said Crystal Williams, the American Immigration Lawyers Assn.’s liaison with Homeland Security.

“Just because a removal order has been issued doesn’t mean a case is over,” she added.

Lawyers also say Operation Compliance has taken an inflexible approach to sometimes-complex situations.

Consider the case of a 34-year-old African farmer, now being held in jail in Denver, who is seeking political asylum in the United States. The farmer, Amadou Wouldou Diallo, fled his homeland of Mauritania during a 1989 outbreak of ethnic cleansing in which his family was forcibly taken from their farm.

Diallo was beaten, stabbed with a bayonet, and had many of his teeth knocked out, according to court papers filed by his lawyer. He was taken to a military detention camp, where a guard warned him he was going to be killed. He managed to escape, walked for a day and swam two rivers to reach neighboring Senegal. His father and sister are missing, presumed dead.

Diallo came to the United States in 2002, using a passport with someone else’s name and picture. His employer in Senegal had arranged the trip in payment for six years of work taking care of livestock. Diallo applied for asylum in Denver last year.

During a 3 1/2-hour hearing April 7, the judge found Diallo’s story credible, said his lawyer Sharon Healey. But the judge ruled that Diallo was not entitled to asylum, in part because conditions in Mauritania had improved.

Healey said another judge hearing a different case in the same immigration court a day earlier had granted asylum to another Mauritanian after finding that conditions in the country were worsening. She plans an appeal in Diallo’s case.

Diallo, however, was immediately jailed under Operation Compliance. Immigration authorities set a bond of $20,000, later reduced to $7,000. In any event, he has no money to secure his freedom.

“Amadou, an indigent asylum seeker with no criminal record, is incarcerated with a criminal population in a place where not one other person speaks his native language,” said Healey.

New York lawyer Gary Yerman said he was trying to keep a Chinese client with a pending case in Atlanta out of that city’s immigration court, and beyond the reach of Operation Compliance. He has filed an appeal of the case with a federal court in Manhattan.

The threat of automatic arrest may prompt foreigners who would otherwise follow legal procedures to go underground, Yerman said.

“If this pilot program becomes national policy, I personally believe our immigration system will stop dead in its tracks, because aliens will not take the chance of being incarcerated and sent back to their countries,” he said.

His client Liqing Chen, 30, said in court papers that she and her husband were fighting deportation because they feared she would be sterilized against her will under China’s strict one-child policy. The couple has an 11-year-old son, and wants another child.

Chen said she was required to wear an intrauterine contraceptive device after the birth of her son. In February 2002, she was ordered to report for a sterilization operation because she had missed mandatory pregnancy checks, she said.

China’s central government has a policy against using coercion to force people to submit to sterilization, but human rights advocates say local governments tend to ignore it.

After receiving the notice, Chen and her husband decided to come to the United States, she said in an interview. They borrowed money to pay a smuggler. Their son remained in the care of relatives in Fujian province. The husband has been in immigration detention since 2003, but she is free.

“American people cannot understand what kind of problem Chinese people have because the American government does not have this kind of family-planning policy,” a tearful Chen said through an interpreter. “We came over to seek protection, not persecution.”

She asked that her husband not be identified, because it could make life harder for him if he were sent back to China.

Branch, the immigration official, said he could not comment on individual cases.

Within Homeland Security, other officials are concerned that asylum-seekers may be subjected to needlessly harsh measures under Operation Compliance.

One official said he was not bothered if foreigners were arrested for overstaying a tourist visa and then compounding the violation by ignoring an order to leave the country. But he said he was troubled that asylum-seekers might be forced to remain in jail for long periods while their cases snake through the courts.

Instead of detention, immigration lawyers have suggested a parole system for keeping track of foreigners who have cases pending in immigration court and have not committed any criminal violations. The lawyers dispute the government’s estimate of as many as 400,000 scofflaws at large, saying the statistical systems used by authorities are not reliable enough to produce an accurate count.

Separately, the government is experimenting with at-home detention, enforced by electronic monitoring anklets or a call-in system that uses voice recognition technology.

“It used to be that decisions on detention were made on a case-by-case basis,” said Williams, of the lawyers’ association. “Now it’s a blanket policy.”