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Meir Rinde

 

The Chinese Prisoner

Connecticut resident Dan Hong Liu has languished in federal immigration detention for close to three years, with no way out in sight

 

By Meir Rinde

October 5, 2006

 

The Franklin County Jail in Greenfield, Mass., celebrated its 120th birthday this year. It is Massachusetts’ oldest county jail, so much a relic of a bygone era that even though the county is building a new jail, the old one is expected to be preserved as a historic artifact.

The brick-walled cells are tiny, 48-square-foot spaces “that look more like closets,” according to an article on the county web site. The sheriff has described the facility as a firetrap, an accident waiting to happen. A state senator, Stan Rosenberg, recalled his first trip to the jail after he was elected. “I tried to keep a poker face as I walked through, because I was in absolute shock,” he said.

The jail was built to house 66 prisoners but, together with a modular addition, now houses 179, including nine federal immigration detainees — people who are not jailed for committing a crime but are being held pending deportation or resolution of their immigration status.

One of those prisoners, a Chinese immigrant named Dan Hong Liu, has been in jail for nearly three years, and it remains unclear when he’ll get out. He has not been accused of any crime, but after an unsuccessful bid for political asylum he was arrested and slated for deportation. His lawyer succeeded in quashing his deportation order several months ago, but he’s been stuck with the status of “arriving alien,” which means the Department of Homeland Security has complete discretion over whether to let him out of jail.

Liu has been the victim of many unfortunate circumstances in the last several years, according to people who know him. Because of his involvement in the Falun Gong religious movement, Liu was harassed and threatened by the Chinese government until he fled the country in 2000, they say. Arriving in the U.S., he was subject to the vagaries of the nation’s system for judging asylum applications, and then to the flawed services of a notorious immigration lawyer who was later disbarred.

Since early 2004 he has been stuck in indefinite incarceration, his freedom subject to the whims of the immigration bureaucracy. In Franklin County Jail, the 26-year-old Liu lives cheek to jowl with convicted criminals, slowly going nuts over his Kafkaesque fate.

“He’s like a model prisoner. He doesn’t cause problems,” said Tommy Liu, a friend who is not related to Dan. “It’s starting to become unbearable to him. He just wants some kind of answer. You can’t keep him inside for the rest of his life. It’s not like he went out and robbed somebody. His crime was not really that big. We understand he came into the states illegally, but maybe just deport him or bail him out. They can’t just keep him there.”

 

In July 1999, the Chinese government began a crackdown on Falun Gong, following massive demonstrations by practitioners that apparently alarmed officials with their scope. The government reportedly went on to detain hundreds of thousands of people, thousands of whom may have died while in custody.

After being threatened with arrest, Dan Hong Liu took a boat to southeast Asia and then flew to the United States, arriving in November 2000, Tommy Liu said. Dan has two brothers in Connecticut and other relatives in New York, so he settled here and worked in a Chinese restaurant.

A month after he arrived, the Immigration and Naturalization Service began trying to deport him. He applied for political asylum, was denied, appealed the decision, and in 2003 was denied again.

It turned out his lawyer, Joseph Muto of New York, had advised him not to mention his involvement with Falun Gong, even though that was the main reason he needed political asylum, according to Tommy. At around the same time, Muto, who had hundreds of clients, was accused of participating in a network that smuggled in Chinese immigrants and of providing them with shoddy legal representation. He was disbarred in 2002 in a case that sent shockwaves through the immigration bar.

“A lot of lawyers, especially immigration lawyers, they’re really out to cheat people out of their money,” Tommy said. “They always promise they’ll do something, they’ll do something, if you pay them, and we fell into one of those scams.”

Dan continued living and working in Connecticut until late 2003, when, during a trip to the DMV, he presented a Chinese passport without a valid entry document, Tommy said. He was turned over to Immigration and Customs Enforcement or ICE, one of the divisions of the new Department of Homeland Security that replaced the INS, and jailed.

However, he wasn’t deported. He succeeded in having his case reopened, was denied relief again by an immigration judge, and then lost another appeal in November 2004. And he still wasn’t deported. Because of the irregularities in his case, his new lawyer, Thomas Massucci, decided to ask a federal appeals court to grant a stay on the legal order requiring Dan’s deportation. In April of this year, the U.S. Attorney’s office in New York agreed to a settlement vacating the decisions of the immigration judge and appeal board, essentially putting Dan back at square one.

 

Massucci argues that, at that point, there was no reason U.S. taxpayers needed to shell out for Dan to remain at the Franklin County jail. He said when he tried to find out why ICE wouldn’t let Dan out, a Department of Homeland Security lawyer told him the agency maintains Dan “acted out” when he was first arrested, in 2003. “Not violent toward anyone else, but upset he was being put in handcuffs and taken to jail,” Massucci said.

But he doesn’t believe that a three-year-old tantrum is really the reason Dan must remain in jail as he tries, for the third time, to get a fair hearing on his asylum application.

“In most cases, when that’s pending you’re allowed to work and have a life,” the attorney said. “I can’t begin to fathom what the rationale is for doing this to Liu.”

An ICE spokeswoman in Boston, Paula Grenier, said she would look up Liu’s case, but she was not able to comment before the Hartford Advocate’s deadline.

Dan had a court date scheduled this week with an immigration judge in Hartford, but Massucci described it as a procedural step that would likely not result in any decision. Massucci said he has also filed a petition for a writ of habeas corpus with a U.S. District Court. The Bush administration has tried to suspend the Constitutional privilege of habeas corpus for accused terrorists, but it still applies to others under U.S. jurisdiction; a successful petition by Massucci would require those holding Liu to justify his continued detention. If the judge disagreed with their reasons, he could order Liu released.

Massucci said he has previously used habeas corpus to quickly obtain freedom for an immigration detainee in Georgia. As of press time government attorneys had not yet responded to his petition for Dan, he said. Their deadline was this past Tuesday. “Meanwhile, he’s still sitting there,” Massucci said. “I actually had a nice chat a few weeks ago with one of the wardens at [the jail] in Massachusetts. He said, ‘These guys, they’re nice guys. None of them are criminals. They’re just kind of here.’ In a nutshell, that’s the story of Dan Hong Liu.”

 

Immigration law is a confusing thicket of successive federal statutes, court rulings and procedural rules. Of the various statuses the law uses to classify foreigners living in the U.S., Dan’s is among the least generous in granting autonomy to the immigrant. He apparently arrived in the country without proper travel papers, but was allowed in nonetheless. He is thus considered an “arriving alien,” left in a limbo that offers him only the slimmest of opportunities to demand the rights other U.S. residents take for granted.

“He is still treated under the law as if he’s stuck at the border and still seeking admission for the first time,” said Mary Holper, an attorney with the Boston College Immigration and Asylum Project and the Catholic Legal Immigration Clinic. “He’s not officially admitted.”

Bizarrely, as an arriving alien who has not received a final order of deportation, Dan has a harder time challenging his detention than an undocumented alien — than a Mexican national, for example, who slipped across the border and has no papers at all — or an illegal immigrant who has been convicted of a crime but not deported.

An undocumented person is at least entitled to a bond hearing in front of a judge, Massucci said. And the Supreme Court has ruled in recent years that those in the final stage of deportation proceedings, but not actually removed from the country, can only be held for six months before they must be released. Those decisions came in the case of immigrants who were ordered deported, in some cases after committing crimes, and kept jailed indefinitely because their home countries refused to accept them back.

But since Dan has never gotten a final order of deportation, it’s almost completely up to ICE to grant him a bond hearing and allow him out of jail. Even for experienced observers of the nation’s immigration agencies, the reasons for allowing a detainee out or keeping him behind bars are deep mysteries.

“It’s not very clear,” said Andrea Black of Detention Watch Network, a Washington, D.C. advocacy group. “There is so much discretion. There should be national policy, with more specific criteria.”

In theory, international treaties require signatory nations to allow asylum-seekers some dignity, including freedom from arbitrary detention. In the U.S., the government’s argument for detaining them has been that many don’t show up for their immigration hearings.

“Ultimately, their argument is that this is regulatory detention and not punishment,” Holper said, but “it looks and feels and tastes just like punishment.”

The percentage of immigrants who do abscond from court proceedings is a matter of debate, according to a report issued by an Amnesty International researcher last year. ICE reported a 30 percent no-show figure, while the U.S. Commission on International Religious Freedom put the figure at 22 percent.

Advocates for asylum-seekers argue that those numbers show that people awaiting immigration hearings can remain out of jail. Black’s organization says that well-organized programs that monitor asylum-seekers but allow them to live in the community can work, and at a lower cost than keeping them incarcerated.

“It’s really a shame,” she said. “There are alternatives to detention that have proven to be successful and effective. Some of these alternative programs operate at as low a cost as $12 a day.”

 

Tommy Liu said Dan’s friends and family have tried everything they can think of to get him out of jail. They’ve written letters to senators and local officials. They’ve hired lawyers and gone before judges. Tommy estimated they’ve spent $20,000 over the last two and a half years on legal fees, traveling to visit Dan, and money for him to spend on amenities in jail.

Even now, Massucci can’t say when Dan might get out. The habeas corpus petition could jostle ICE to release him quickly, but a series of back-and-forth legal filings could last for months.

Even if he is released soon, Dan has already joined the rare and sad cohort of long-term immigration detainees. Most asylum-seekers are not stuck in indefinite jail stays; while the Amnesty report concludes that too many asylum-seeker are thrown in jail by ICE, it also says the agency reported they were detained an average of just 64 days in 2003. The Physicians for Human Rights surveyed detainees in five New York, New Jersey and Pennsylvania facilities and found that those finally granted asylum spent an average of 10 months in detention.

Of all those surveyed, including those still imprisoned, just seven percent had been jailed for more than two years. The longest detention among those granted asylum was three and a half years.

Dan Hong Liu may beat that record yet, but no one knows. And it’s not knowing, not understanding why he remains under lock and key or how to get him out, that puzzles and angers his lawyer, friends and family.

“If he knows what time he’s going to go home, in two years, in four years, he can wait,” Tommy Liu said. “Now, it’s just an endless, vicious cycle.”

 

Write to us at editor@hartfordadvocate.com or mrinde@hartfordadvocate.com.

 

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