Assurances to Marielitos Come Up Short

Now that the disturbances are over at the Alien Detention Center in Oakdale, La., and at the Federal Penitentiary in Atlanta and Atty. Gen. Edwin Meese III has described a new release and repatriation procedure, we must ask whether his assurance that the cases of the Cuban detainees will be reviewed in a “full, fair and equitable” manner is being followed.

The answer, regrettably, is that the review plan falls far short of the assurance.

Repatriation under the attorney general’s plan is to be based “principally on crimes committed.” This provision, however, is vague and could be applied almost across the board on the question of returning the detainees to Cuba. Simultaneously, release from American confinement is to be determined by an initial file review and interview by the Immigration and Naturalization Service, with the opportunity for those not released to have their files reviewed and possibly to be re-interviewed by special Department of Justice panels. Detainees can be assisted by counsel whom they hire or find at no expense to the government.

The criteria under the plan must be clarified. The Cubans who have close American relatives, or who can demonstrate a well-founded fear of persecution on return to Cuba, may be eligible for status and protection under our law.

However, this would cover a relatively small fraction of the Marielitos--the Cubans who arrived in the United States during the Mariel boatlift and were detained indefinitely either for crimes they had committed in Cuba or after running afoul of the law in the United States. The detainees deserve more. Specifically, they should be allowed the same opportunities to remain in the United States as were granted the others who arrived in 1980. As long as they do not pose a danger to American society, they should be granted immigration parole--a special procedure that has been used historically to bring refugees into the United States--and released. Those who are found to be dangerous, a minority of the detained Cubans, must ultimately face deportation. This is the appropriate standard for review.

Given the high stakes involved--release and possible immigration status in the United States, or return to Cuba--the procedural protections should, of course, be ample. Specifically, the review should occur entirely before a neutral arbiter and not before the INS, which has essentially warehoused the Marielitos in the past and demonstrated no sensitivity at all to the individual cases. The Department of Justice panels could conduct the interviews and review the cases fully to guarantee implementation of the attorney general’s assurance.

Also, attorneys should be provided free of charge to the Cuban detainees to assist them in this review. Appointed counsel will be required in order to ensure that the determinations made are reliable and fair, particularly in view of the vast logistical difficulties that will be involved in examining the cases of small groups of Cubans held in detention facilities throughout the country.

Similar protections concerning detained Cubans were embodied in an order issued in 1983 by U.S. District Judge Marvin H. Shoob in Atlanta. But that order was overruled by the Court of Appeals on the ground that the Cubans--considered “excludable” aliens who have not yet technically “entered” the United States--deserve no constitutional consideration. But such procedural protections are warranted in the interests of justice. The Marielitos have been mistreated on a categorical basis during their incarceration in the United States, and that mistreatment should finally be remedied.

Beyond the remedy, we must avoid such abuses in the future. While the federal courts have frequently declined to become involved in challenges to immigration practices because of the excludable-alien provision, many of the individuals involved have been in the United States for several years.

They are as entitled as anyone to the guarantees found in our Bill of Rights. All people who are subject to U.S. governmental power--be they citizen or alien, at the border or within the territorial confines of the United States--deserve constitutional fairness and equal treatment to protect them from abuse. If the courts hesitate to abolish this fiction of the excludable alien, then Congress should. Only by eliminating the gap in protection for those who come from abroad can we remain secure in the exercise of our rights as citizens.