Forgotten Prisoners: The Problem With Our Immigrant Deportation System
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JosÃ¨ Hernan's deportation back to his native Ecuador for violating his tourist visa was supposed to be quick and easy. "Within a few days," Hernan was told the morning after he arrived at the Chippewa County Jail in Sault Ste. Marie, Michigan -- as long as he signed a "voluntary departure" form, essentially relinquishing his right to seek legal help.
"A few days," Hernan was promised, and he'd be back home with his family in the Andes Mountains ... "A few days," my family in Empire was told when we returned a phone call to Agent Cheney of the Border Patrol, who had detained our friend after an arts and crafts show in St. Ignace (just above the Mackinac Bridge) on Sept. 3.
Two months later JosÃ¨ Hernan was still there, languishing in a jail cell and cut off from the world while his deportation file gathered dust at a maze of federal agencies under the guise of Immigration and Customs Enforcement (ICE), the successor to Immigration and Naturalization Services (I.N.S.) under the post-9/11 Department of Homeland Security.
Meanwhile, this country's taxpayers fork out as much as $80 per day for federal prisoners awaiting the inevitable deportation back to their homeland. Chippewa County Jail's Sheriff Moran claims that Sault Ste. Marie jail receives $56 per day per federal inmate -- under the national average. Still, at that rate Hernan's 65-day incarceration cost us $3,640 -- almost seven times the cost of an actual flight back to Quito, Ecuador. A fellow Ecuadorian inmate waited in Chippewa County Jail for 10 months. Do the math: 300 days, at $56 per day, equals a whopping $16,800 -- the price of our inefficient, and some would claim racist, deportation system.
Why does the deportation process take so long? According to Tara Tidwell-Cullen of the National Immigrant Justice Center in Chicago, a federal judge must first approve the deportation order, and then ICE must obtain travel documents from the detainee's country. Without these documents the detainee can't travel. Previously, I.N.S. (now ICE) couldn't indefinitely detain noncitizens whom it couldn't remove (such as a citizen of the former Yugoslavia whose government no longer officially existed) for more than six months, but the precedent established by the Supreme Court's decision in Zadvydas v. Davis is not always upheld -- such as the case with Hernan's Ecuadorian jail mate.
Deportable aliens are usually taken to their countries on chartered flights called JPATS (Justice Prisoner and Alien Transportation System). In the past, flights to Mexico have gone once a week, on Fridays, but Tidwell-Cullen thinks that may have changed, and neither ICE nor JPATS will comment on their exact deportation procedures. Flights to other countries are not as standard, and detainees flown home on commercial flights, with or without handcuffs, is not unheard of either.
Though the terrorist attacks five years ago were executed by Islamic fundamentalists from the Middle East, many argue that the paranoia and Patriot Act legislation that followed have hurt Latinos from south of our border more than anyone. JosÃ¨ Hernan was caught in that net before he was finally deported on Nov. 8 -- 65 days after his capture.
Yet Hernan actually had a visa to be in this country legally. He has spent years in the United States and hadn't been arrested before or caused any problems before this fall. He's traveled back and forth between the Midwest and South America with relative ease. That's because he and his family are OtavaleÃ±os, Quichua Indian artisans from a market town in northern Ecuador well known on the backpacker and tourist circuit for its beautiful indigenous fabrics and textiles.
Because of their indigenous heritage, OtavaleÃ±os are often granted permission to sell their native products or play their Andean flute music -- as Hernan's sister Miriam puts it, "defending their culture" -- and make a little money on the side, despite not having work visas. Artisans from Otavalo show up on the street corners of cities all over Europe, Japan and Canada, and in Hernan's case, at arts and craft shows all over the upper Midwest.
In fact, that would be the definition of free trade: Central and South American workers flowing freely into the United States and back again to earn their daily bread while multinational corporations enter countries like Ecuador unimpeded and make their greenbacks harvesting bananas and cocoa and strip-mining the land for minerals.
But in the post-9/11 United States, the department of Immigration and Customs Enforcement ominously falls under the Department of Homeland Security, suggesting that all visitors to our country should be suspected as terrorists. Just a few months ago, before the federal government passed more anti-immigrant legislation, Hernan would have been given a slap on the wrist and 30 days to leave the country for selling at a crafts show without a work visa.
Wrong Place at the Wrong Time
On the afternoon of Sunday, Sept. 3, Hernan was packing his artisan wares into his van at the conclusion of the Labor Day weekend Art Dockside fair, near the base of the Mackinac Bridge in St. Ignace, when he was approached by Agent Cheney and asked for his documentation. Jen Joseph of the St. Ignace Chamber of Commerce, who plays a hand in facilitating Art Dockside, told me that Hernan has appeared as a vendor at the annual show for many years. He's often been the only minority there, but Joseph attests that his products are popular in their uniqueness. As far as she knows, Hernan has never made any enemies in St. Ignace, and she doubts that another vendor ratted out their foreign competition.
Of course, the Labor Day Bridge Walk was to be held the following day, and security and police were numerous on Sept. 3, as they have been ever since 9/11. Joseph figures that Agent Cheney just happened to be in the area, and Hernan's brown skin caught the border guard's attention.
After the arrest, on the 45-minute ride through the Upper Peninsula on I-75 up to Sault Ste. Marie, Hernan says that Cheney tried to get under his skin. The border guard allegedly lambasted the prisoner for wearing a T-shirt with the face of Argentine revolutionary Che Guevara on it, launching a political tirade about Cuba's leader Fidel Castro and Venezuelan President Hugo ChÃ¡vez, and how they were threatening the United States. Hernan answered that he had purchased the shirt in, of all places, Norway, where Che's face is an iconic symbol among Scandinavia's (clearly dangerous) youth. Cheney told Hernan that he had served with the United States Army in Kuwait during the first Gulf War, and that if things were up to him, he'd just shoot the "illegal" Latino immigrants streaming into this country.
Once they arrived at the Chippewa County Jail, the handcuffs came off and Hernan was immediately put behind bars. Not until the next day was he asked to fill out any paperwork and informed of his rights -- afforded to everyone, even noncitizens, under the Geneva Convention. "Sign this voluntary departure form and you'll be deported much faster," Hernan says he was told. "Don't waste time pursuing legal help, which will only delay things."
Though he speaks and understands enough English to get by, a jail in a foreign country can be a dizzying and intimidating place. Hernan signed the ironically named "voluntary departure" form, putting himself at the mercy of the system.
And as the days turned into weeks, his Quichua Indian family worried about what was happening to Hernan up there in the far reaches of El Norte and when he would return. His wife or his sister called me almost every other day asking why the United States wouldn't just deport him. His brother in Ecuador has a brain tumor, she told me, and he might not live to see Hernan again. Out of near desperation, the family finally hired a lawyer out of Grand Rapids named Richard Kessler, an advocate for Latino rights who once worked with the late CÃ©sar ChÃ¡vez, the famous leader of the National Farm Workers Association.
Kessler is appalled at the way ICE mishandled Hernan's case. It took more than a month for his file to reach one of the three immigration judges in Detroit who have to approve the deportation, but once the attorney intervened late in the ballgame to reverse Hernan's "voluntary departure" status in hopes of helping him stay in the country, the process virtually started over again. Kessler told me that a secretary in Detroit actually forgot to fax Hernan's file to the appropriate ICE office, and it sat on her desk for two weeks before he called her, livid. She gave Kessler the telephone equivalent of a shrug and a lukewarm apology. Meanwhile, the prisoner counted the weeks.
Hernan's file status as O.T.M. (Other Than Mexican) slowed down his case because most of the foreign nationals caught in the United States are deported to the country immediately south of our border within a few weeks of their arrest. The jargon, "other than Mexican", does little to dispel mainstream America's ugly stereotypical assumption that everyone south of the border, from the Rio Grande to Patagonia, be called "Mexican" or "wetback" or just plain "illegal." In fact, when Agent Cheney approached Hernan at the crafts show in St. Ignace, the first question he asked was, "Hey, are you Mexican?"
Neither Cheney nor anyone else at ICE would comment directly on whether Hernan was misled or mistreated during his initial capture other than to release a canned statement through a media relations officer: "The Border Patrol takes all allegations of misconduct seriously and encourages anyone with information regarding any acts of alleged impropriety to report it immediately. Mr. [Hernan] had several opportunities to file a complaint if he felt the agent made inappropriate comments, including filing a complaint at the Border Patrol station, with the consulate officer of his country, with the immigration judge, or through his attorney. We are not aware of a complaint filed through any of these channels."
Guantanamo Orange in the Upper Peninsula
Visiting a friend behind bars for the first time is a depressing experience, regardless of whether it's a maximum-security prison, where armed guards hover over you, or a low-grade county jail, where you are all but ignored. Sundays are visitation days in Chippewa County Jail for men whose last names began late in the alphabet. Visitors are forced to wait in a stuffy hallway for what seems like an eternity before an intercom voice invites you into a room the size of a closet where your friend sits behind a Plexiglas wall, clad in prisoner orange -- unable to reach out and shake your hand. Both the visitor and the inmate are treated, and ignored, like prisoners.
Even more alarming is when the phantom looking at you through the glass is innocent, and has been there for months at the mercy of people who treat him like a statistic -- an "illegal immigrant," as the jargon goes -- with no word on when he'll go home or get a chance to explain his case.
When I visited Hernan in late September he told me mortifying stories of how his fellow foreign nationals awaiting deportation were treated -- no, not beaten or tortured, for that would require that the Border Patrol officers actually acknowledge their presence.
Among the 13 male foreign inmates in Sault Ste. Marie was a Chinese man whose wife was incarcerated in the same jail, probably just a wall away. They were not allowed to see each other. To communicate at all they were forced to send letters to family members living in the Upper Peninsula who forward the mail right back to the spouse in jail. The Chinese couple had two young children living nearby who were born in the United States and subsequently were not at risk of being deported. The Chinese man spoke minimal English and, as Hernan told it, after the kids visited him through the demeaning Plexiglas window, one of the officials at Chippewa County Jail tried to convince the Chinese man to sign away custody of his children.
Then there's the other Ecuadorian who held the dubious distinction of being the senior member of the 13 men awaiting deportation to their homes all over the world: Senegal, Bulgaria, China, Mexico, Cuba. The money we American taxpayers shelled out to hold Hernan's countryman, $16,800, compares to the annual salary of a minimum wage worker. He was held for 10 months -- a blatant violation of the Supreme Court's decision in Zadvydas v. Davis.
The other Ecuadorian was losing it, Hernan attested, crying out at night for his family, and shaking with nerves every morning. He wondered if he'd ever see his family again.
As far as I could tell though, JosÃ¨ Hernan himself was a study of mental perseverance. In the time my family and I spent with him, Hernan exhibited an inner calm with the way things were around him -- almost like a Buddhist monk. He didn't speak much, which sometimes gave others the false impression that he didn't understand the English spoken around him. But Hernan, like his sister Miriam and like the other OtavaleÃ±os I met on a trip to Ecuador earlier this year, seemed tolerant of what he could not change, tolerant of his fate to wait in a jail cell for his humiliating deportation home, tolerant of his work that forces him to live out of a van in a faraway country for six months a year while he visits arts and craft shows as the lone, token foreigner trying to earn enough money to feed his family.
The Ecuadorian economy is a wreck, largely due to free trade economic policies forced on Latin America by Washington and the World Bank, which have all but wrecked the job markets of countries in South America, Central America and Mexico, contributing more than any other reason to the surge in Latinos (and indigenas) coming north to find work. That's exactly what the recent knee-jerk, xenophobic reaction to Latino immigration doesn't get -- no one wants to leave their families behind and toil in a foreign land where the locals refer to them as "illegals." They do it out of necessity.
The difference between the Mexicans and Central Americans harvesting many of our cash crops in northern Michigan and the Ecuadorian Indian artisans like Hernan is that the OtavaleÃ±os always return home.
"We indigena always return because otherwise we would miss our roots," explained Hernan's sister Miriam. "The union of the family mostly, and our language, is so important. When I'm here, I miss walking on the small paths among my people.
"As Quichua we help each other out. There are some artists who are unable to leave the country. So we buy from them and sell the products abroad. If we didn't do this our culture, our work, would die. It's the same thing with my musician husband Luis. If he didn't play his songs from the Andes Mountains, no one would remember them."
My mother and I visited Miriam in Ecuador in February on a trip whose primary purpose was to learn about the cacao my mother uses in her chocolate. What struck us most was the unstoppable pride of the people in the northern highlands. We even got to witness the Pawkar-Raimi -- the annual celebration for the corn harvest where a Miss Native Ecuador is crowned.
In Otavalo, the indigena have done well for themselves. Unlike the often impoverished state of "Indians" in North and Central America, many Quichua families in Hernan's home village own a good car with a sticker of a national flag on the back, signifying which wealthy country that person visits for several months a year to tell the world about their traditions and artisan crafts. Most importantly, they always return home.
That's all JosÃ¨ Hernan wanted to do -- go home.