New York Times
February 18, 2002
Though Not Linked to Terrorism, Many Detainees Cannot Go Home
By CHRISTOPHER DREW with JUDITH MILLER
The Justice Department has blocked the departures of 87 foreign detainees who had been ordered deported or had agreed to go home, while investigators comb through information pouring in from overseas to ensure that they have no ties to terrorism, law enforcement officials say.
Most of the detainees are Arabs or Muslims, and many have spent more than 100 days in jail waiting to leave the country, with no end to detention in sight. Nearly all were jailed after being picked up on visa violations at traffic stops or because of neighbors' suspicions.
Officials said available evidence suggested they had played no role in the Sept. 11 attacks or Osama bin Laden's Qaeda network, and the immigration cases against some of them were resolved as long as four months ago.
They have nonetheless been held in an unusual legal limbo while investigators check their backgrounds and new evidence about Al Qaeda and other terrorist groups emerging from Afghanistan and other countries.
In the past, visa violators who had no other charges against them were usually deported or allowed to leave voluntarily 60 to 90 days after their immigration cases were closed, lawyers said. But these detainees are being treated differently.
American officials acknowledged a great reluctance to release people who could be involved with terrorism and said that the Federal Bureau of Investigation was working hard to complete the checks.
"We have to be very careful about the people we let go," said a senior Justice Department official, who spoke on condition of not being identified by name.
Civil liberties advocates agreed that the government needed to be careful but said the delays were stretching the normal legal timetables. The government, they said, was in the dubious position of holding people indefinitely without charging them with a crime.
"It's gotten to where we're really in uncharted waters," said Lee Gelernt, a senior lawyer for the Immigrants' Rights Project at the American Civil Liberties Union. "The government has effectively reversed the presumption of innocence. They are holding people for months once their immigration cases are concluded while they look to see if there is a reason to bring other charges."
Immigration lawyers say the new policy, created by Attorney General John Ashcroft shortly after Sept. 11, has led to a collision between the traditional rights afforded foreigners and the need for heightened security. Many of the detainees do not have lawyers, but some who do have begun to file lawsuits in federal court demanding their release.
In response, the Justice Department official said: "There is some justification in their position that we can't hold the detainees forever. But we feel we do have some leeway."
Law enforcement officials said that some detainees were still being scrutinized but that many others had been released recently or were simply awaiting completion of travel arrangements or new passport documents. More than 700 people were held on immigration charges after Sept. 11. Officials said on Friday that they were still holding 327 people, including the 87 already under departure orders.
Interviews with defense lawyers suggest that the clearance process has delayed the release of many of the detainees held in New York and New Jersey. A close look at some cases shows that the inquiries have created murky standoffs in which the F.B.I. cannot prove that the detainees are dangerous and the detainees cannot allay the F.B.I.'s suspicions.
For instance, Ahmed Alenany, a cabdriver in Brooklyn, was caught in the post-Sept. 11 dragnet when it was found that he had overstayed his visa. He said he told an immigration judge in October that he did not need a lawyer and just wanted to get home to his wife and two children in Cairo as soon as possible.
When the judge suggested that deportation would be the fastest route, he said, he agreed to be deported.
In a recent interview at the Middlesex County Jail in New Jersey, Mr. Alenany, 50, who was trained as a doctor, said he had divided his time between New York and Egypt in the last five years.
He said he came to New York seeking specialized medical training, but he had little money and ended up driving a cab. He was arrested on Sept. 21 after a police officer in Brooklyn questioned why he had stopped in a no-parking zone and found that his visa had expired.
It is not hard to see why investigators were suspicious. Mr. Alenany said he had taped a photograph of the White House in the back window of his cab. He had also fastened a picture of the World Trade Center to his glove box, with a piece of black tape slanting across an upper corner.
He said he told F.B.I. agents that he had lived for nine years in Saudi Arabia, where he also drove a cab before getting a job as a doctor. Mr. Alenany also volunteered that around 1990, he dropped off a disabled man at the home of a wealthy benefactor, who gave the passenger $50. He said he later heard that the benefactor was Osama bin Laden.
But in the interview in jail, Mr. Alenany said all these events were more innocent than they might have sounded to the F.B.I.
He said he placed the photographs in his cab to show his sympathy for America's suffering and the black mark across the top of the World Trade Center photograph was a common Egyptian symbol of mourning. He also said he had never seen or met Mr. bin Laden and was not even sure the house he went to as a cabdriver was Mr. bin Laden's.
"I told that story voluntarily, but I feel that I put myself in a very critical position," Mr. Alenany said, adding that he was in despair over losing his dream of living in America.
"When I was 6 years of age, I was starving," he said. "And I smelled a beautiful smell. And when I asked what it was, someone said it was cheese from America, a far, faraway land. From this time on I felt love for America."
But, he added: "Now I'm in very bad shape, sir. Sometimes I feel it's hopeless, that I will stay in this jail all my life."
Mr. Alenany said that law enforcement officials took him into custody on Sept. 21 and searched his $300-a- month room in Brooklyn the next day. He received his deportation order at a court hearing on Oct. 16. That means today is his 151st day in custody and the 125th since the deportation order.
After his room was searched, Mr. Alenany said, he did not hear from the F.B.I. again until Jan. 17, when agents visited him in jail. He said they told him that American intelligence agencies had information about, or had intercepted, a phone call in which he made anti-American comments. He said they did not say what he had said or tell him when the conversation had taken place. He said he denied making such statements.
In one other meeting, on Jan. 29, investigators sought his help, Mr. Alenany said. They asked him about immigration violations, unrelated to terrorism, involving other people he knew, he said.
Justice Department and immigration officials declined to comment on Mr. Alenany's case. But defense lawyers said that the effort to gather investigative leads could further delay the release of some detainees.
Mahmoud Allam, Egypt's consul general in New York, said his government had tried to help Mr. Alenany and other detained Egyptians.
"This is a common case — people who get decisions for deportation from a court, and then they are not implemented," Mr. Allam said. Egyptian officials endorsed efforts by the United States to tighten security, he said, but, referring to the difficulty of some detainees in getting out of jail, he added, "It reminds you of the famous Kafka story of `The Trial.' "
Bhanu Goldsmith, a New Jersey lawyer, said she represented a detainee from Mauritania who agreed to leave in early November, prompting an immigration service lawyer to predict that the man would be home by Thanksgiving. But, Ms. Goldsmith said, she recently heard that the man was still in jail, awaiting F.B.I. clearance.
Officials at the immigration agency, which is part of the Justice Department, said they were ordered to move more slowly with those detained after Sept. 11 than with other visa violators.
Referring to the F.B.I. reviews, Andrea Quarantilla, the immigration service's district director in Newark, said, "There is certainly an extra step in the process."
Lawyers for the detainees say visa violators who agree to leave usually must leave in 60 days but can sometimes take as many as 120 days.
Federal law provides that deportations should take place within 90 days of a deportation order. But the Supreme Court has ruled that the immigration service can extend that to 180 days if other countries refuse to accept a deportee.
Civil rights lawyers said deportation laws were enacted to deal with cases in which the government was trying to make people leave. "But now we have the opposite situation, where the alien is ready to comply and leave but the government doesn't want to let him go," said Bryan Lonegan, a lawyer at the Legal Aid Society in New York.
The only recourse for detainees held longer, lawyers say, is to file writs of mandamus in the federal courts to try to force the immigration service to send them home, or to file writs of habeas corpus to seek release.
Aslan Soobzokov, a lawyer in Paterson, N.J., said he recently filed habeas corpus petitions for three people detained after Sept. 11 and the government quickly sent two of them back to their native country, Turkey.
Regis Fernandez, a lawyer in Newark, said that shortly after he filed a writ of mandamus on behalf of a 21- year-old Australian of Arab descent, the immigration service notified him on Friday that the man had suddenly been cleared to leave.
Justice Department officials said they recognized that such petitions could become the next battleground involving the detainees.
"I'm not saying that in this large universe of people we haven't made some mistakes and held some people longer than we wanted to," the senior Justice Department official said. But the F.B.I. was pushing to complete the background checks, he said, and had "no interest in detaining people who are not a threat to us."
Copyright © 2002, New York Times Company. All rights reserved.
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