Built almost 10 months ago, NORCOR also houses a population of Vietnamese, Cambodians, and Cuban nationals. Under a recent federal law, the Immigration and Naturalization Services (INS) has been ordained with the authority to hold these men and women for indefinite periods of time, even though they are not charged with any crime. Granted, these immigrants are not boy scouts; they are leaving state penitentiaries when the INS detains them. But they have served their time. These are additional penalties inflicted by the INS.In early June, signaling an important shift in power over the fate of immigrants like Nguyen, the federal public defender won a courtroom battle with the INS which secured Nguyen's release. Two weeks after being let out of NORCOR, Nguyen spoke with the Mercury at his mother's house in NE Portland. He has spiky black hair and looks much younger than his age. "This is supposed to be the land of freedom," he said, "but we're not treated equally." Nearly half of his years in America have been spent in jail, held by the INS.
Nguyen left Vietnam six years ago. After communist forces took over the country, his father, who served with American troops during the Vietnam War, was sent to "re-education" camps and tortured for nearly a decade. His family escaped, hoping to find freedom and a new life.
After Nguyen served one year in Pendleton Penitentiary for fencing stolen computers in 1998 (the same year that the new law took hold) he was shipped immediately to a county jail in Yamhill instead of being released--as he would have if he were a US citizen. According to federal law, the INS may send any immigrant caught for a felony crime back to their home country.
A handful of countries, however, refuse to re-admit these immigrants. Decades of fractured politics with rogue nations like Vietnam and Cuba have left the US without treaties to extradite them back to their home countries. As such, these men are held in county jails around Oregon, caught in a bureaucratic black hole that several attorneys refer to as "purgatory." Nguyen was transferred to NORCOR when the facilities opened 10 months ago. 16 men live in each of NORCOR's small dormitories, their entire lives shared within 20 by 30 feet. For no more than one half hour each day, they are let outside, to a penned-in and covered courtyard. "We couldn't see the sun," Tan said. "I never knew what season it was."
Because these detentions are administrative matters, Tan was not afforded the legal luxuries of an attorney. He had no release date and few contacts with the outside world. "I had no hope," he explained. But, in early June, the tide turned--if only temporarily. For the past several months, the federal public defender and several private attorneys around Portland have been advocating for the freedom of nearly five dozen immigrants. On June 6, federal district judge Owen Panner roughly admonished Oregon's INS for its heavy-handed detention policy and ordered the immediate release of Nguyen and two other Vietnamese men. The attorneys have been trying to wrestle the decision-making power away from the governmental agency and into an open courtroom, where judges can review INS policies and decisions.
The release of Nguyen comes on the heels of a federal ruling by the Ninth Circuit Court of Appeal a year ago. Signaling a radical change of INS policy for west-coast states, the court ordered the INS to release its iron-grip on jailed immigrants. Despite this ruling, however, the district bureau for Oregon has refused to budge. In comparison, the INS bureau in Washington responded to the Court of Appeals ruling by releasing the majority of detained immigrants held in their jails. So far, Tan is only one of the few success stories in Oregon.
Abuse of Discretion
At the heart of the controversy over long-term detainees in Oregon is David Beebe, the District Director of the INS. In recent months, Beebe has been the focal point for a varied chorus of public condemnation, from public defenders to Governor John Kitzhaber. Critics point to the indefinite jailing of men like Tan (as well as recent detentions of Japanese businessmen at PDX airport and those seeking political asylum) as a chilling pattern of overbearing and abusive use of authority. It is estimated that 56 immigrants are currently held in Oregon's jails.
In open court in May, federal judge Panner told an attorney representing the INS: "I am very concerned." He chastised the INS and District Director Beebe for "just keeping everybody in jail around here."
Ultimately, Judge Panner ordered the INS to provide transcripts of hearings when immigrants request release. It is a patronizing demand, something akin to a boss looking over the shoulder of a distrustful employee.
Based on a 1998 federal law, district directors have nearly unbridled decision-making power on individual cases. They have the discretion to either release these immigrants on an ad hoc parole basis, or, at the other end of their spectrum of discretion, hold them indefinitely. As such, in Oregon, Beebe operates largely undisturbed by other federal authorities. Attorneys for the score of jailed immigrants in Oregon and advocates for refugees believe that the INS--and, in particular, Beebe--have abused this independence.
Since late spring, a steady stream of attorneys representing detained immigrants have moved through Judge Panner's courtroom. There, attorneys have demanded that the INS actually conduct meaningful reviews of the detained immigrants cases instead of simply rubber-stamping detention orders.According to Steve Manning, who works with Immigration Counseling Service in Portland, the sentiment is that Beebe runs the INS more like a headstrong, autonomous militia than part of a democratic government.
"Whenever there is a chance to exercise discretion, he [Beebe] says 'no,'" said Manning. "If he wanted to say 'all aliens with green hair get on boats tomorrow,' he could do it. There is no substantive constitutional protection."Attorneys working for immigrants' releases complain about being stonewalled by Oregon's INS bureau. The federal public defender, for example, has struggled to obtain exact numbers of detainees and was forced to file a formal request in federal court to obtain their names.
Attempts at gathering biographical information about Beebe by the Mercury were similarly frustrating. Preliminary requests for background information from Beebe's office were refused. Subsequent calls to the Department of Justice in Washington DC, which oversees the INS, also failed to yield any further information. Yet one hour after a phone call to a press agent for the INS in Laguna Beach, California, who also refused to provide basic biographical information, Beebe himself called the Mercury, obviously annoyed. "I hear that you are asking questions," he said, curtly.
The limited information that Beebe grudgingly provided was that before arriving in Portland in 1988, he worked in Minnesota for 13 years, first as a program analyst for the INS in St. Paul and later as the deputy director. He refused to say where he attended school; he admitted that he was a Midwesterner, but would not provide his birthplace. Seemingly, Beebe sprung fully-formed into a high-ranking government job in 1975.
His office is located on the fourth floor of a granite building sitting at the foot of the Broadway Bridge. He has a thin face, angular features, and wispy gray hair. Most likely, Beebe is in his late 50's. In an early morning interview with the Mercury, Beebe was flanked by two deputies and his attorney. On his windowsill sat a 12-inch replica of the Statue of Liberty.
"We are not the judge and jury," Beebe counters against charges that his office holds too much power. His voice is measured with caution, moving past each word as if stepping through a minefield. He continues, "we are the exercise of discretion."
"Our main purpose is to remove," he says, referring to the thousands of migrant workers they deport to Central America each year. Only a few days earlier, the INS had conducted its largest sweep of Oregon farm fields in state history, rounding up 450 Latino workers.
But, according to Beebe, immigrants from countries like Vietnam and Cuba present unique difficulties in that their countries will not take them back. He said that the INS cannot just strap a parachute on these men and drop them back into their home country. Then, he laughed. It was the only time during the interview that he smiled.
Addressing the Vietnamese, Cambodians, Laotians, and Cubans being held indefinitely, he refers to them coldly as the "static population."
Repeatedly, Beebe explains that he is "bound by federal statute" and that his hands are tied in making his determinations to hold immigrants.
It is exactly this type of unblinking attitude that has angered those who work with the jailed immigrants. A priest who has worked for decades with Vietnamese refugees (and directly with several of the INS' current immigrant detainees) said that Beebe's answer that he merely follows Congress' orders is "something you would hear at the Nuremberg Trials."
"He just doesn't sound like a guy who's dealing with human beings," said the priest, who preferred to remain anonymous.
Habeas Corpus-- Produce the Body
Although Judge Panner has sided with the public defenders and ordered the release of several detained immigrants, it has been a long journey for attorneys to reach these rulings. Momentum began to gather one year ago. At that time, Jay Stansell, Assistant Federal Public Defender in Seattle and a former immigration attorney, was told that hundreds of immigrants were being held indefinitely by the INS throughout Washington. He was shocked. "The irony is that most of these men are leaving police states," Stansell said, referring to the fact that the vast majority of immigrants fled their home countries for political reasons.
"Freedom should not rest on one person's discretion," complained Stansell, who has served as the lead attorney for a score of detention cases. He continued, "the attitude that the INS takes is: 'trust us.'"
The INS fought tooth and nail against Stansell over the release of several men, including a Cambodian man, Kim Ho Ma. Last July, the Ninth Circuit Court of Appeals sided with Stansell and admonished the INS, stating that what is at stake "is simply the right to be at liberty." The ruling from the court has become popularly known as "the Ma Case" and has quickly emerged as a seminal moment in the struggle to free INS detainees.
Most likely, though, this ruling is only a temporary fix: The Ninth Circuit, which encompasses California, Oregon, and Washington, tends to be more liberal than the rest of the country. Judges reviewing similar cases in the Fifth Circuit, which includes Texas, have ruled in the opposite direction, preserving the sanctity of the INS decision-making power. It is likely that these cases are on a collision course with the Ma ruling and will end up in the US Supreme Court within the year. Unfortunately for detainees and their lawyers, Ninth Circuit decisions have a low survival rate at the Supreme Court.
No Freedom At All
The same federal law that allows Beebe to lock up immigrants also requires that every six months the District Director or one of his deputies review a plea for release from each individual immigrant. Essentially, if the jailed immigrant doesn't display a threat of running or to public safety, the rules state he should be let out of jail. But, the ultimate decision is left to the District Director. According to attorneys and jailed immigrants, this process is a sham.
"It didn't matter what I did in prison," said Son Nyugen, a stocky 30-year-old Vietnamese man, who had been released only two weeks earlier from NORCOR. "They would tell me to keep doing it until they felt like they could let me go." He spent five years at Oregon Correctional Institute for attempted murder and, shortly after being released, was pulled back into prison for a parole violation. After completing his prison sentence in 1998, he was sent directly--and indefinitely--to Yamhill County Jail. Son was held there for 18 months and then another six months in NORCOR. For two years, each time Son appeared in front of INS officers requesting his release, he was denied.
"This system is very messed up," he continued. "How can they expect us to follow the rules when they don't even follow the law?"
While in jail, he began to study law and drafted his own writ of habeas corpus, a legal tool demanding release. He has poor eyesight and chronic eye disease. For two years, he requested care from the INS. But they failed to even provide him with eyeglasses. "I always had headaches," he complained.
Son was finally released by an order from Judge Panner on June 6 along with Tan and a third Vietnamese man. Currently, Son is living at his mother's house in NE Portland. At a recent interview with the Mercury, he was sitting outside in the late afternoon sunshine, wearing a red Blazers cap. After spending the majority of his adult life imprisoned, Son is struggling with his new found liberty.
"Everything I do, they are watching me," he said. Though released from jail, Son remains very much in the grips of the INS. Every month, he must return to the INS office to check in. He cannot leave the state of Oregon for more than 48 hours. And, if the United States works out a treaty with Vietnam for extradition, Son will be shipped back to a country where he hasn't lived since he was ten years old, and where he no longer has any family members.
"I'm free," he said, "but I have no freedom at all." For several moments, Son sat quietly, as if considering exactly how limited his options are.