Denying Justice to NJ's Immigrants

Many, who have committed no crime, face life in limbo

By Reena Arya

Since Sept. 11, 2001, detention centers and county jails in New Jersey have housed growing numbers of immigrants. Around 1,100 immigrants are being held in half a dozen county jails and the Elizabeth Detention Facility. This ever-rising tide of detainees -- shocking on its own given the lack of due process that characterizes so many of these cases -- is prompting troubling new questions about the circumstances and conditions under which they are being held.

Unfortunately, the trend is likely to continue. The 2006 budget for the Department of Homeland Security appropriates $90 million in new funding for increased detention beds and detention and removal officers. With New Jersey having one of the largest immigrant populations in one of the smallest geographic areas, our state will continue to be a locus of government activity against this group.

As things stand now, the picture that has emerged after four years of government hostility toward this disenfranchised population is one of unconstitutional mistreatment and systematic discrimination.

Who are these individuals? Mostly, they are people who have overstayed their visas or are otherwise not in legal status. But many are asylum seekers fleeing persecution in their native countries, only to find themselves arrested at U.S. airports. Most have families, jobs and community ties in New Jersey. They are your neighbors, friends, colleagues or even family members.

Unfortunately for many of them, the religious freedom they expected to enjoy here has been turned on its head. This is particularly so for Muslims, Arabs and South Asians, on whom the Bureau of Immigration and Customs Enforcement has focused its immigration enforcement efforts since Sept. 11, despite the fact that the vast majority of undocumented immigrants come from other places.

Although by law immigrant detainees have the same rights to religious practice as incarcerated U.S. citizens, they are often treated at the whim of prison and jail officials. For example, on Oct.17, the Passaic County Jail suddenly stopped serving halal and kosher meals, sparking a hunger strike among 20 immigration detainees. Only after public pressure did jail officials lift the ban and make the meals available again.

Though having committed no crime, immigration detainees don't even enjoy the legal protections afforded criminal defendants. While immigrant detainees have some due process rights under the Constitution, they do not have a right to counsel like criminal defendants. This means that immigrants who cannot afford a lawyer usually go through deportation hearings without a representation, without understanding the law, and often without knowledge of the charges against them. Having a lawyer can make the difference between deportation and staying in the United States, which for some is a life-or-death matter.

On paper, immigrants in deportation proceedings are afforded some due process of law. Yet transcripts of some asylum hearings suggest something different. While criminal proceedings are conducted in adherence to the Constitution and evidence rules protecting defendants from abuse, immigration judges, who have broad discretion, have been known to insult immigrants on the record, interrupt or stifle their lawyers during their questioning of witnesses, impose unusually harsh standards of evidence and make erratic decisions.

In at least two separate cases, the U.S. Court of Appeals for the Third Circuit has admonished New Jersey immigration judges for abusive behavior in the courtroom that led to negative credibility determinations and an ultimate denial of immigration relief such as asylum.

The most recent instance of judicial abuse involved a New Jersey immigration judge who was admonished by the Third Circuit for her use of personal bias and her mistreatment of the asylum applicant's lawyer. In this case, the Third Circuit expressed concern about the judge's humiliation of the asylum applicant by way of attacking his moral character, which ultimately led to a denial of due process because the hearing was not conducted in a fair and impartial way. In its decision, the Third Circuit highlighted the disturbing pattern of misconduct of immigration judges, which has compromised their ability to conduct fair hearings.

Government neglect of its responsibilities has also exacerbated the plight of detainees. Some immigrants in New Jersey are held indefinitely simply because the U.S. government has not been able to secure travel documents to effect their deportation. After 90 days of detention, federal regulations require that deportation officers review a detainee's status on a regular basis to determine if continued detention is appropriate in light of the detainee's community ties, likelihood of deportation and potential security risk. Unfortunately, the reality is that many detainees in New Jersey linger behind bars without these periodic, mandatory reviews.

In essence, immigrants serve detention sentences simply because they are here without legal status, they are fighting for that status or they are unable to be removed in a timely manner. These are civil, not criminal, violations. If immigrant detainees must serve sentences like criminal convicts, or face deportation, they should be guaranteed the same constitutional protections, such as religious freedom, due process, appointed counsel and an impartial hearing.

Reena Arya is the Immigrant Rights - Safe and Free Coordinator at the American Civil Liberties Union of New Jersey.

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