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Deportations May Render Detainee Challenges Moot
by Samuel McTyre
Friday, July 19, 2002
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Apparently fearing adverse rulings by the judiciary, the government has stepped up its removal of post 9/11 detainees.
Several sources are reporting that the US Government has removed (deported) almost two-thirds of the persons that were detained after the terrorist attacks last year. The foreign detainees, mostly from South Asia and Arab countries, were removed for alleged immigration violations. The detentions are the subject of legal challenges over the secrecy with which the government continues to act.
The BCIS (a.k.a. INS), which has assumed a frightening we-can-do-whatever-we-please attitude with foreign nationals, has removed some detainees for as innocuous a transgression as failing to report a change of address. The most common charge against the removed detainees was that they overstayed their visa.
According to the government, most of those detained in the post September 11 sweeps, have been removed. Approximately 74 persons are still being held. A very small number of persons have been released. Many relatives of detainees report that the removals are done so abruptly that they learn of the action only when the relative calls from the home country to let them know that they have been deported.
The ACLU, in support of the families of detainees and Muslim-American groups, has led the legal challenges to the government’s apparent policy designed to punish Arabs and Muslims. Government critics cite the lack of information given to relatives and the continued detention of persons who have agreed to leave the country as examples of the government’s abuses with respect to the detainees. Little else is known about their detentions.
In a recent decision a New Jersey federal judge rejected the government’s policy of holding secret removal proceedings for person’s detained in the post 9/11 sweeps. The ruling required that the government cite reasons for closing each individual calendar case. US Department of Justice filed for a stay of the ruling while the government appealed the ruling. The Third Circuit denied the request for a stay, but on June 28, the Supreme Court overruled the Third Circuit and granted the stay pending appeal of the ruling.
The government argues that opening the hearings and revealing the identities of the detainees would compromise its investigation of terrorist activity. Most immigration lawyers agree that this position is less than sincere and forthcoming, since an immigration judge has a number of protections at his disposal to prevent sensitive information from being revealed.
Many government critics argue that the removal of the detainees may be designed to avoid a negative ruling in the legal challenges. If the detainees are no longer in custody, there is no controversy and the legal challenges may be dismissed as moot. In the past federal courts have retained jurisdiction of cases involving persons who were deported in order to review allegations of due process violations.
Based on the Third Circuit’s refusal to grant a stay to the New Jersey ruling, it appears that the notion that the government has gone too far in abridging civil liberties is taking hold among the judiciary. Many legal scholars are beginning to view the government’s actions as dangerous and devoid of any accountability with respect to its actions against foreign nationals. Whether this concern extends to the ultimate protectors of civil liberties – the Supreme Court, remains to be seen.
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