Cuban 'Detainees' From Mariel Boat Lift : 2,500 Prisoners of U.S. Face No Charges

Times Staff Writer

For 23 hours a day, 169 men are confined to tiny two-man cells in an enclosed, three-level cell block called H-Unit.

They can't eat in the mess hall. They can't mix with the other prisoners. They can't take a prison job. They can't leave their cells without handcuffs and shackles.

The men in H-Unit are kept in "lock-down" not because they have committed worse crimes than the assorted bank robbers, drug dealers and kidnapers in the general population of the U.S. Penitentiary at Lompoc.

In fact, the men in H-Unit face no criminal charges. They have already completed their sentences, some more than 5 years ago. And if they were U.S. citizens they would have been released long ago.

But because they are Cubans who arrived in this country on the Mariel boat lift nine years ago, they are without the same constitutional protection as American prisoners. So after they served sentences in prisons or jails, instead of being released, they were transferred to Immigration and Naturalization Service custody and placed in federal prisons.

Because they are not serving sentences for crimes, the INS does not refer to them as prisoners. They are called "detainees."

There are about 2,500 detainees being held in 23 federal prisons throughout the country. The INS would like to send them back to Cuba. But Cuban President Fidel Castro won't accept most of them. So until Castro changes his mind, or the INS decides to release them, the detainees will remain in H- Unit.

Orlando Hernandez Bango has been held under lock-down conditions for 2 1/2 years in three federal prisons. His forehead and cheeks are covered with small scars and scratch marks, a patchwork of self-inflicted wounds.

"Sometimes I feel like I'm going to blow up. . . . I get so nervous I start scratching my face," said Bango, who was sent to federal prison after serving a six-month sentence for drug possession. "Always being in your cell . . . with loud noise around you all the time drives you crazy. I've seen friends dragged out of their cells after hanging themselves. Waiting, waiting, waiting all the time . . . it's a terrible feeling."

'Takes Its Toll'

Warden Richard Rison acknowledged that long periods of lock-down "take its toll." About one detainee a month "loses it mentally," he said, and is transferred to a federal medical facility.

But Rison and other prison officials say the extensive security is necessary. In 1987, detainees who rioted in federal prisons in Atlanta and Oakdale, La., took 138 hostages and caused about $64 million in damage.

To settle the riots, the INS agreed to review each of the detainees' cases. Many were released after the reviews, but those who remain fear they will be behind bars forever.

Advocates for the detainees don't blame an already overburdened federal prison system for the Cubans' situation. They blame a quirky legal system that enables the government to imprison people who face no criminal charges.

But the detainees have had their reviews, INS spokesman Verne Jervis said, they have had their day in court. And, Jervis said, the courts have upheld the decision to detain the Cubans indefinitely.

"Aside from all the legal issues . . . this kind of thing is simply wrong and an affront to our whole country," said George Crossland, director of the Mariel Assistance Program in Kansas. "It's contrary to everything this country stands for."

The saga of the detainees began in 1980 when 125,000 Cubans left the fishing port of Mariel in a flotilla of small boats for the United States. The United States later discovered that some of the "Marielitos" were prison inmates or mental patients that Cuba had released to join the boat lift.

Although some were held for having serious criminal records--and never released--most were eventually freed. But those convicted of crimes in this country were immediately returned to INS custody after they served jail or prison sentences.

U.S. District Judge Marvin Shoob in Atlanta ruled in 1983 that this indefinite detention was unconstitutional. But a panel of appellate judges overturned his decision, agreeing with the government that the Cubans were not entitled to the same rights as American citizens.

Shoob, in an unusual posture for a federal judge, has spoken out in favor of the detainees. Many Americans have assumed incorrectly that all the detainees were violent criminals who should be sent back to Cuba, he said.

But about a third of the detainees whose cases he reviewed before the riots, he said, were picked up on petty offenses such as shoplifting or drunk driving "and never should have been in prison to begin with." Another third were "extremely dangerous," he said, and the rest were "in a kind of gray area."

U.S.-Cuba Pact

In 1984, Cuba signed an immigration pact with the United States, agreeing to take back about 2,500 detainees, many of whom had been convicted of crimes. But five months later, Castro suspended the agreement because he was angered over broadcasts by the U.S. government-sponsored Radio Marti into Cuba.

The 1987 prison riots in Georgia and Louisiana were sparked by the renewal of the deportation agreement with Cuba. As part of a settlement to end the riots, the Justice Department promised all detainees "full, fair and equitable" reviews. But the reviews, conducted before two INS officers, "aren't what I'd call fair hearings," said Gary Leshaw, an Atlanta Legal Aid Society attorney who has represented numerous Cubans.

The detainees' attorneys, Leshaw said, were not permitted to call witnesses, cross-examine adverse evidence or even see the full contents of their clients' file.

Some of the Cubans are violent criminals who should not be released in this country, Leshaw acknowledged. But there must be "meaningful due process hearings to determine that," he said, "and because there isn't, a number of people are being held who deserve to get out."

'Multiple Chances'

But INS spokesman Jervis said the government gives the detainees "multiple chances." The INS has released more than half of the detainees whose cases have been heard, he said. Those who remain imprisoned have an opportunity to reapply for release annually, he said, and detainees' attorneys can appeal INS decisions to the Justice Department.

But Leshaw contends that the appeal process can take up to three years. And because he says attorneys cannot effectively argue their clients' cases, it is only a "paper review."

The United States is now deporting the detainees whom Castro had agreed to accept under the 1984 agreement, but Cuba has refused to accept anyone else. Those not on the deportation list might one day be released in the United States.

But the detainees--most of whom speak no English and have few job skills--have no opportunity to prepare for life outside prison, said Luis Ortiz, an Indianapolis lawyer who works with Cuban prisoners in Indiana.

Although the Bureau of Prisons is beginning to integrate some Cubans into prison populations, most are still kept in lock-down conditions. As a result, they can't take language classes or learn trades, Ortiz said. By simply warehousing them, Ortiz said, the government is ensuring that the Cubans will again fail to make it when they return to the streets.

Orlando Bango was 13 years old when he came to the United States in the Mariel boat lift with his mother and four brothers and sisters. He graduated from high school in Florida and was working as a mechanic when he was first arrested.

He was driving with a friend when, according to court records, "his vehicle was approached by three males . . . who had a quarrel with Mr. Bango's companion. . . . The men proceeded to ram his car with their truck. . . . Mr. Bango . . . fired (with a pistol) at the rear end of the truck . . . to scare the perpetrators away."

Bango was given a suspended sentence after pleading no contest to assault with a deadly weapon. Later that year Bango and a co-worker were driving a company truck when he ran a red light. Police found cocaine and smoking paraphernalia under the seat. Bango claims that the drugs were the co-worker's, and he was never charged. But the court found that he violated his probation and ordered him to serve 18 months in prison.

Release Recommended

After his sentence, he was transferred to INS custody and has been in federal prison since 1987. The INS officers who reviewed his case recommended his release. They noted that he has a wife and child, parents in Florida and that his former employer had offered him a job. And Bango had no disciplinary problems in prison. But officials in Washington rejected the field officers' recommendation with no explanation, said Bango's attorney, R. Thomas Griffith.

"I made a mistake and I paid for it," Bango said. "But I don't know if I'll ever get out of prison. I know this kind of thing could happen in Cuba. But I can't believe it can happen here."

Bango's former employer, J. D. Hayward, wrote a letter to the INS asking that he be released.

"Orlando's biggest problem was bad judgment . . . he picked the wrong friends," Hayward said in a telephone interview. "He's basically a decent kid. He worked six days a week for me and he worked hard. I'd like to have him back. They should let him out so he can support his family. He's served his time."

The detainees are neither immigrants, refugees, nor citizens. As "excludable" aliens they have even fewer rights then undocumented aliens.

When the INS arrests people who have slipped over the border, the "burden of proof" is on the government to show that they do not belong here, said Jervis of the INS. They are entitled to a deportation hearing; their attorney can challenge the deportation order in court; they can "get some leniency" if they have family members in the United States, Jervis said.

But excludable aliens are those who were "stopped at a port of entry," he said. As a result, they do not have the same rights as those apprehended inside the country.

"They entered the country with no immigration status," Jervis said. "In essence they were paroled into the country. And when they commit a crime their parole is revoked and they are back in INS custody."

But civil rights lawyers call this a "legal fiction." The detainees are placed in an obscure immigration category reserved for "stowaways on airplanes," said Leshaw of Atlanta Legal Aid.

"As far as the law is concerned the Cubans have never entered the United States," Leshaw said. "It's like they're in some suspended condition where they have no right to any constitutional protection."

Speaks No English

Juan Diaz, a detainee at Lompoc, does not understand the complex legal issues surrounding his imprisonment. He speaks no English and has never had a visit during five years in prison.

Diaz is 67 and fears that he may spend the last years of his life in prison. He claims that he was serving a jail sentence in Cuba for petty theft when he was given the opportunity to come to the United States. Diaz was sent to federal prison after a series of arrests for marijuana possession, according to his attorney, Paul Sugino of Santa Barbara.

Sugino is representing Diaz without charge because he is angry that the government is again detaining people who face no criminal charges.

"They did the same thing to my parents and grandparents during the war," said Sugino, a Japanese-American, whose family was confined in an internment camp in Poston, Ariz. "It was legal at the time, but 40 years later we were vindicated by the courts. How many years are we going to wait before we decide this is wrong, too?"

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