COLUMN ONE : INS ‘Lifers’ Locked Up in Limbo : They have served their time but are considered too dangerous for release in the U.S. Their home countries won’t take them back. So a group of immigrant felons languish behind bars.

The fine points of federal immigration law, with its statutes and technical revisions, are lost on Nirayo Tirfe, a former Ethiopian guerrilla once granted political asylum in the United States.

His understanding is more visceral, coming as it does from being locked up indefinitely in a maximum security prison without any remaining criminal charges or even a sentence to serve.

The U.S. government tried to deport Tirfe after a marijuana conviction, but his country refused to take him back. Now he is stuck behind bars, a “lifer” in Immigration and Naturalization Service slang.

Like scores of other illegal immigrants, Tirfe is a man without a country, an undesirable under U.S. law who has become an international pariah. Immigration law says they have committed crimes ranging from drug offenses to murder that make them too dangerous to release here.

They have slipped into a void created by global politics and Congress’ desire to get tough on immigrants who turn to crime.

The INS estimates that nationwide there are no more than 100 detainees who fall into this category. But over the next few years, hundreds more are expected to finish their prison terms, only to be warehoused by the INS.

A little-noticed legal fine point, included in the Immigration and Nationality Act of 1990, controls Tirfe’s fate and handcuffs government officials required to keep him and others like him indefinitely behind bars.

The law says these so-called “non-releasable aggravated felons” remain a danger to society--even though they have completed their sentences in state or federal prisons.

“There is a problem that we feel as an agency--having somebody locked up forever and ever,” said John Simon, INS deputy assistant commissioner for deportation and detention in Washington. “We are trying to deal with it in a humane way.”

Tirfe is told not to think of his time at the Orleans Parish Prison in New Orleans--and before that at an INS detention center in Arizona--as punishment, but as an administrative “hold”--one that has stretched beyond a year. There is no relief in sight.

“I’m not dangerous to society,” Tirfe said from Mississippi’s Hancock County Jail, where he had been moved temporarily so that he could speak to a reporter. “I didn’t kill nobody. I didn’t rob nobody. They lock me up forever because of these three lousy joints.”

Like Tirfe, most detainees have been convicted under the country’s zero-tolerance drugs laws, and some of the offenses involve relatively small amounts of drugs. Others are murderers, armed robbers and rapists. They all are illegal immigrants, including some, like Tirfe, who were allowed into the country but never completed the legal immigration process.

An immigration judge has ordered each of them deported, but if the order cannot be carried out, they must be locked up until another nation agrees to accept them.

That could take months, or years, or it might not happen at all. The U.S. government pays the cost.

The list of such prisoners is growing so quickly that the agency has notified its offices throughout the country that “on a very select basis” they may send them to prisons and jails in the South.

Here, it is cheapest to house them--the going rate in county and parish jails is $45 a day--and the locals look upon the INS detainees as a cash crop. Prison construction, too, is booming.

“We don’t always agree with the INS holding them,” said Hancock County Sheriff Ronnie Peterson as he strolled through the jail he runs in Bay St. Louis. “But we like the money.”

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Although the number of such detainees is relatively small, the INS worries about those in the pipeline: inmates from Vietnam, the former Soviet Union, Cambodia, Laos, Iraq and Ethiopia who are serving state or federal prison terms.

Depending on the currents of international politics, these countries and a few others have generally refused to take back their criminal citizens. The INS says other countries--such as Nigeria and Jamaica--routinely engineer excessive delays.

“It’s simple,” said INS spokesman Duke Austin in Washington. “Countries don’t want bad people back.” (The U.S. repatriates American criminals deported by other countries.)

A check with state corrections departments in California, Texas, Florida, Illinois and New York, and the federal Bureau of Prisons, shows that as many as 900 prisoners from these nations might one day become INS “lifers.”

This does not include more than 5,000 Cubans who are serving state prison terms or being indefinitely held by the INS in local jails at U.S. expense. They have been the subject of on-again, off-again negotiations with Cuban President Fidel Castro.

“We’re looking at the Vietnamese, because we think that is going to be the core population,” said John B.Z. Caplinger, INS district director in New Orleans, which has jurisdiction over detainees in Louisiana, Mississippi, Tennessee, Arkansas and Kentucky. “Right now, this ag (aggravated) felon thing is so new, we are still bouncing the ball to see which way it is going to go.”

Caplinger said the law’s intractability has created a Kafkaesque scenario where different branches of the U.S. government are playing tug of war over the fate of at least three INS prisoners who have been promised new identities under the federal witness protection program.

Their criminal histories make the prisoners “aggravated felons.” But if they are deported, the presumption is they would be killed.

“I’ve got prosecutors calling me every day,” Caplinger said. “I’ve got people who testified against (former Panamanian strongman Manuel) Noriega who can’t be released. That’s how difficult this is.”

Citing policy, a spokesman for the U.S. Marshals Service declined to confirm or deny any information about participants in the witness protection program.

The backgrounds of most other detainees are relatively mundane.

Abed El-Abed, a 35-year-old Palestinian born on the West Bank, entered the United States by walking out of New York’s John F. Kennedy Airport when he was making a stopover in 1977, leaving behind his luggage and a Jordanian passport. Later, he opened a convenience store in Houston, got married and fathered four children in the United States.

In 1985, he was busted for selling heroin and served nearly seven years in federal prison in Texas. A positive drug test forced officials to revoke his immigration bond; he has been held by the INS at the federal detention center in Oakdale, La., for more than 17 months. The cost of his detention, according to prison officials, is $25,000 a year.

Jordan has refused to accept him, as have other countries he asked: Italy, Germany, Greece, Sweden, Denmark, Austria and Spain.

El-Abed said that if he cannot be freed in the United States, he would like to go home. “I prove to them that I am Palestinian and they still don’t believe I am Palestinian,” he said.

INS officials said that may be, but they will continue to list him as a Jordanian. There is no Palestinian state, much less one that would take him back.

Tirfe, the former Ethiopian guerrilla who fought the government for an independent Eritrea, also has nobody to come to his aid.

According to a written INS analysis placed in his file, his two convictions for simple marijuana possession are analogous to an aggravated felony under federal law. But Tirfe, 43, has no lawyer to challenge this argument, no money to hire one, and no hope of getting out. Ethiopia will not accept him and neither will anyone else.

“I’d rather stay three years in state prison than one year here,” he said of his cell at the Orleans Parish Prison in New Orleans. “I’d rather take a chance to go back home, even though my life is in danger.”

Sheriff Charles Foti Jr., who has run the 5,000-bed Orleans Parish Prison since 1974, confirmed that the non-deportable prisoners have been kept in lock-down 24 hours a day. He refuses to allow reporters to talk to inmates at the facility or to see the conditions in which they are held.

But asked about complaints by Tirfe and other detainees of being shackled every time they leave their cell and of being denied food, Foti snapped: “These are felons who are security risks, who demand maximum security. And while we are providing a service for the INS, that is how they are kept.”

Said Tirfe: “They treat us like animals.”

Unlike the Cubans who arrived in the United States 14 years ago as part of the Mariel boat lift--and who won the right to an annual parole board review after rioting at federal prisons in Oakdale and Atlanta in 1987--the non-deportables have no higher authority to whom to appeal. The mechanism does not exist in the law.

“The only thing I have left is my sanity, for now,” said Iraqi Khaled Najib, 33, who served four years in federal prison for selling cocaine and is approaching eight months in INS custody at the federal detention center in Oakdale.

“When I did my time, I had something to look forward to. But this is torture.”

“It’s very depressing, mental torture,” said Vi-Kiet Giang, who served 10 years in Idaho state prison for stabbing his fiancee to death in 1983, just a few months after the U.S. Navy rescued them from a rickety boat in international waters off Vietnam.

When he was paroled from prison--and Vietnam refused to take him back--Giang was sent to the Orleans Parish Prison. Because Giang committed his crime before completing his legal admissions process, he may not be released on bond.

The law, insisted Simon of the INS, ties the agency’s hands. “The intent of the law was good, but I don’t think Congress realized what a bind they were putting us in,” he said. “And what you have to understand is if you have just one guy who knows that he has nothing to lose, that he may never get out, that’s a (potential security) problem.”

So far, three internal INS proposals to give the agency more discretion to release aggravated felons remain just that. Another that could be submitted to Congress as a technical amendment to the Immigration and Nationality Act is under review by the INS general counsel.

But some mechanisms exist to persuade nations to take their citizens back. The problem, according to the INS, is that they are rarely used. “As the most extreme step, the State Department is supposed to stop issuing immigrant visas to those countries,” said INS spokesman Austin.

“But that has never happened, not to anyone’s knowledge. They just don’t do it. They are not willing to do it. And the foreign countries know it. So they say, ‘Why should we bring them back here?’ ”

A State Department official, who asked not to be identified, said the U.S. government did briefly stop issuing immigrant visas to Cubans after the Mariel boat lift.

“There would be serious ramifications in this country to doing something like that,” he said. “Who would you be hurting? You’re talking about family members of immigrants here. These are not people coming to Disneyland or coming to buy goods.”

Even when countries reach agreement on the repatriation of criminals, the best-laid plans can go awry.

In the first INS operation of its kind, the agency chartered a plane in December to return 74 male and nine female prisoners to Nigeria, a cheaper alternative than flying them commercially.

The detainees were held at Oakdale, in jails throughout Louisiana and in Miami. The Nigerian government finally issued travel documents for them. The operation took months to plan.

But when the Royal West 727 landed to refuel in Cape Verde, Nigerian authorities ordered the pilot to fly into Lagos--where the U.S. government refuses to allow American aircraft to land for security reasons--instead of Ibadan, the negotiated destination.

While negotiations between officials in Washington and Lagos continued, the refueling stop stretched past five hours and the prisoners, who were shackled, staged a revolt.

The leader had managed to slip his hands in front of his body, and strode to the front of the aircraft to encourage the others to make their move. Before order was restored, officials said, INS agents were bitten, shoved and kicked.

When the plane landed in Lagos, authorities there turned out the runway lights and tried to arrest the INS officials for bringing the Nigerian prisoners back. Finally, the prisoners were accepted.

INS headquarters later issued awards lauding the bravery of the 11 officers who made the trip.

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Soviet immigrant Alexander Okner’s probation officer in Santa Monica describes him as a career criminal who has committed despicable acts.

“After he serves the longest possible prison sentence as allowable under the law, probation officer is hopeful that the immigration service can find some means by which this country no longer needs to accept his kind of refugee,” the officer was moved to write in her report.

But unlike Giang, who murdered his fiancee, or even Tirfe, convicted of possessing marijuana, Okner is not an aggravated felon under immigration law. That is why INS officials in New Orleans refused to accept him in Orleans Parish Prison, where agency officials in Los Angeles recently asked that he be moved.

Okner’s most recent felony--the kidnaping and rape of a Santa Monica woman--took place in 1982. This crime, for which Okner served eight years in state prison, was not included in the immigration act’s aggravated felon provision until 1990--and the law is not retroactive.

But INS officials in Los Angeles consider him such a threat to society that they have jailed him at the federal detention center at Terminal Island since October, 1992. They say they would like nothing better than to remove him from the United States, where he has lived for 17 years.

But they say their efforts have been stymied.

Russia refuses to take him, as does the Ukraine, the former Soviet republic where he was born. Israel, where he applied for admittance because of his Jewish heritage, has also declined.

In October, the INS took the extraordinary step of booking him and an immigration agent on an Aeroflot flight to Moscow, without travel documents. Russian authorities refused to let Okner in.

“I’m trying to get out of here,” Okner said from Terminal Island. “If I’m such a menace to society, and they don’t believe that I’ve been rehabilitated, then deport me. This is a life sentence.

“I hope one day they will get me out of here, dead or alive. I’ve been promised employment (in Los Angeles). I want to marry my girlfriend, help my parents,” he said. “If they think I will rape someone again, please make me a woman. Have the government pay for it. I’m serious.”

Okner provided a letter from a psychiatrist who has treated him that said he “would pose no hazard whatsoever” if released.

Still, INS officials in Los Angeles say they have no intention of releasing Okner, despite a series of motions and lawsuits he has filed, despite his claim that he has changed and despite a desperate plea from his mother and father, who now suffers from cancer.

He has convictions for assault and battery, assault with a deadly weapon, extortion, kidnaping and rape. He has admitted using drugs. INS officials also suggested that the unsolved slaying of Okner’s fiancee in 1981 has been weighed in their decision to keep him behind bars, although he has not been charged.

They say they will hold him “forever,” if it comes to that.

“Los Angeles has the strictest detention policy in the U.S.,” said Donald Looney, INS deputy district director in Los Angeles.

One reason behind this stance, INS officials indicated, is the case of Bela Marko, an illegal immigrant from Hungary with a long criminal record. The INS came under fire because Marko had been released from INS custody before he and Los Angeles Police Detective Russell Kuster killed each other in an October, 1990, shootout.

Like today’s non-releasables, Marko’s homeland had refused to take him back.