Land of the Detained

By Dan Frosch, AlterNet. Posted May 5, 2005.

Another Thursday night at the Hudson County Correctional Center in northern New Jersey and everyone knows the routine. It starts with the line of people--overwhelmingly black and Hispanic--snaking out of the jail's front doors all waiting for an hour to clear the one metal detector. Then there's the half hour stuffed into a drab waiting room, before visitors are brought in shifts to an adjacent series of booths where inmates and loved ones laugh and cry over a phone for 30 minutes--separated by a thick glass partition clouded with years' worth of dust and parting kisses.

It's here that Wolff Marsan sits, tall and quiet at 30, with dark skin, a tightly trimmed goatee and tired black eyes. Unlike the other inmates, nobody close to him has come visiting tonight. They're all either back in Port Au Prince, Haiti where he was born, or Cambridge, Mass. the city to which he moved when he was a boy. Yet he's here, retelling a story he's told countless times to friends, lawyers, even himself.

"I can't believe I'm still locked up, son." Marsan says in a soft tumble of Haitian patois and standard hip-hop speak, his voice muffled by the half-broken phone and the clamor of wives, girlfriends, sisters, mothers and children. "Twenty-eight months and I'm still in this place. And now they're trying to send me back."

"Back" for Marsan is Haiti, his home before age 13, when he and his sister and father came to Cambridge. It was in Cambridge that Marsan made a mistake that has cost him dearly for the rest of his life.

In 1996, at the age of 21, Marsan was arrested for selling about $20 worth of cocaine to a plainclothes detective. Marsan plead guilty and received probation. "I just got caught up in a bad situation," he says about the bust.

A year later, Marsan was arrested after a late night brawl. He was charged with possession of a knife he says wasn't his. Though Marsan was acquitted, U.S. Immigration and Naturalization Service (INS) began deportation proceedings against him based on his 1996 drug conviction. The INS could do this under new federal regulations passed in 1996 that allowed the agency to deal harshly with immigrants with criminal records. Marsan, a green card holder, was sent back to Haiti and ordered never to return.

"They had me on this plane with all these other Haitians they were sending back," he says. "I couldn't believe it. I was crying."

In Haiti, Marsan was thrown in the notorious National Penitentiary in Port Au Prince for six months and forced to live in a cramped cell with 25 other men and a single toilet. He says he was regularly beaten and given "the sun treatment," where guards would tie him to chair and use a mirror to reflect the mid-day tropical sun's searing rays on his shaved head.

"The prison in Haiti makes where I am now seem sweet, and this is tough too so imagine what that was like," he says with a rueful grin.

After six months in jail, Marsan finally thought he'd caught a break. A politically connected cousin aligned with then Haitian president Jean Aristide bribed prison authorities to let Marsan out. But the good fortune was short lived. These were dangerous times and upon his release, Marsan was caught in the middle of the bloody battle for political power which had enveloped the country.

As the violence careened out of control, Aristide fled into exile and Marsan's cousin took off for Florida. Even worse, a rival political faction singled out Marsan's family as being disloyal--his mother still lived in Haiti--and began threatening them. One night, the Marsan home was peppered with gunfire. Fearing for his life, Marsan fled Port Au Prince and sneaked across the border into the Dominican Republic. From there, in January of 2003, Marsan hopped a flight for Montreal.

Marsan had hoped to finally start a new life. But his flight stopped in Newark, New Jersey for a brief layover and Marsan was detained by INS officers for illegally re-entering the U.S.

Even though he insisted he was simply trying to reach Canada, Marsan found himself behind bars once more, this time at the Hudson County jail in a special section for immigrant detainees. It's been his home for the last 28 months, as he fights the deportation orders against him.

"Marsan's situation is a living, breathing example of someone who has been wrongfully denied his rights," says Aarti Shahani, co-director of Families for Freedom, a New York based non-profit that deals with deportation issues.

Marsan's story reveals how hopelessly mangled the U.S. deportation system has become over the last decade, particularly for immigrants in this country legally. It's a system which has long been complicated but has now, ostensibly, morphed into a twisting labyrinth of legal technicalities all seeming to lead to the same brick wall-deportation. Much of the current mess revolves around a special legal waiver known as 212(c) which once existed for non-citizens with criminal convictions as a way to avoid deportation and has recently been brought back by the federal government.

Less than ten years ago, Wolff Marsan's fate might have turned out differently. Though federal immigration law has long stipulated automatic deportation for legal non-citizens convicted of serious crimes, individuals convicted of lesser, non-violent felonies were often granted a waiver of deportation called 212(c).

The waiver allowed a hearing where a detainee had the chance to prove to an immigration judge that they should be allowed to stay in the U.S. Lawyers advised their non-citizen clients to plead guilty, serve a reduced sentence and then file for 212(c) as soon as INS started deportation proceedings against them.

In the spring of 1996, everything changed. Riding a sudden tide of anger over crimes committed by non-citizens, Congress drastically tightened immigration law and in the process, wiped 212(c) off the books. Even worse for non-citizens, INS, buoyed by its new power, began deporting people retroactively. If a non-citizen was arrested before 1996, served their time and was released after 212(c) was eliminated, INS could now deport them unconditionally, despite the fact that the waiver had been available at the time of the initial conviction.


The INS continued to deport immigrants retroactively until 2001, when the law changed again. Ironically, the impetus this time was the case of another Haitian immigrant, Enrico St. Cyr. In 1996, St. Cyr was arrested for selling approximately $100 worth of cocaine and served three years in a Connecticut prison. Upon completing his sentence, he was seized by the U.S. Immigration and Naturalization Services and locked up again on orders of deportation. Because of INS's new retroactive policy, St. Cyr could no longer file a motion for 212(c) even though he committed his crime when the waiver was still being granted. Represented by the ACLU, St. Cyr sued the federal government on the grounds that he was lawfully eligible for the waiver. The case reached the U.S. Supreme Court in 2001. The court ruled that Congress never intended for INS to apply its new rule retroactively. That meant St. Cyr and other immigrants facing deportation because of a pre-1997 conviction were allowed to file a waiver.

St. Cyr was eventually freed, and immigrants' rights groups initially hailed the decision as a landmark victory. But irreparable damage had already been done. Thousands of immigrants had been kicked out between the 1996 and 2001 laws. Immigrant rights groups had asked that 212(c) eligibility be expanded to include those people already given the boot. Many of these individuals' family members were still here and wanted their loved ones back. Others, able to skip out on deportation orders, had vanished into the shadow world of undocumented immigrants in the U.S. Still others had been deported only to sneak back into the country illegally.

"The Supreme Court had clearly ruled that the laws by which this group of people was deported was wrong," says Zachary Nightingale, an attorney for the San Francisco immigration law firm Van Der Hout, Brigagliano & Nightingale. Rights groups felt it only made sense then, to allow redress for the people wrongfully deported. Instead, the Justice Department laid out an unflinchingly narrow set of eligibility requirements, the most restrictive being the denial of the waiver to those who were already gone or had re-entered the U.S. illegally.

Immigrants' rights groups were aghast. In their eyes, these were the very people who needed the wavers most.

"It's a discouraging interpretation of the law, because the majority of people who should have been affected are no longer here," says Dan Kesselbrenner, director of the National Immigration Project, part of the National Lawyers Guild.

When asked about the refusal to allow deportees to apply for 212(c), Elaine Komis, spokeswoman for the Justice Department's Executive Office for Immigration Review, referred AlterNet to a 2002 Justice Department document which says the government took steps to avoid deporting non-citizens retroactively during the five years St. Cyr was being litigated.

Such claims mean little to those trying to figure out who exactly is eligible. Benita Jain, a legal staff member for the Immigrant Defense Project in New York City, says the majority of people who've been calling to inquire on behalf of loved ones about 212(c) are out of luck because their family members have already been deported.

"The government is not really doing justice to what the Supreme Court clearly puts forth in the St. Cyr case, that deporting people retroactively is illegal," Jain says.

To make matters more confusing, in October of last year, the Justice Department announced that anyone who wished to apply for 212(c) waiver had only until April 26, 2005. Then, the window of opportunity would be closed. Legal groups decried the deadline as arbitrary and argued that many immigrants had no idea it existed. The Justice Department has held firm.

Back at the Hudson County jail, Wolff Marsan has already submitted his motion for 212(c) and is waiting to see if a judge will grant him a hearing. Like so many others, it would seem he is ineligible because technically, Marsan has already been deported.

On April 22, Aarti Shahani wrote a letter to the Justice Department explaining Marsan's story and making the case for his release. In the letter, Shahani promises to give Marsan a paid internship with Families for Freedom if the government lets him go. Both she and Marsan know full well there's a good chance he'll be shipped back to Haiti, a country with a reputation for tossing deportees in jail no matter the circumstances. Marsan's application to avoid expulsion under the United Nations Convention Against Torture has already been denied by the government.

As he waits, Marsan often finds himself thinking back on everything that's happened: Could the $20 bag of dope he pushed to the undercover cop back in Cambridge really have led to all this? Has he actually been behind bars for the last 28 months for mistakenly re-entering a country that had kicked him out under an illegal policy?

"It just doesn't make sense. Marsan is literally rotting in jail," says Shahani, who's been visiting Marsan for two years and sometimes brings her mother along to keep him company.

As for Marsan, he waits and hopes, and strokes his goatee he's been growing since he was jailed.

"I didn't have this when I went to jail for the first time," he manages a chuckle.

Marsan's smile vanishes, and his eyes look tired again. He pushes a clenched fist up against the glass window separating him from a world that grows farther and farther away with every day.


It's a world he might not see again anytime soon.

Dan Frosch is a New York-based journalist whose work has appeared in the Los Angeles Times, The Source and the Santa Fe Reporter.

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