Alisa Solomon

War Resisters Go North

EDITOR'S NOTE: As The Nation was going to press, Canada's willingness to take in Americans resisting the Iraq war became more concrete. In a year-end review with Canada's Global National, Prime Minister Paul Martin said that Canada was prepared to accept U.S. citizens who do not want to serve in the war. According to the report, when reminded that former Prime Minister Pierre Trudeau opened Canada's doors to draft dodgers and deserters during the Vietnam War, Martin said: "In terms of immigration, we are a country of immigrants and we will take immigrants from around the world. I'm not going to discriminate." Asked whether Martin was referring to Jeremy Hinzman's request for refugee status, a spokesperson said that Martin "was not commenting on any individual case and certainly was not sending a signal to the immigration board." Still, Hinzman's attorney Jeffry House tells The Nation that the prime minister's remarks represent "a step in the right direction."

Protests over the conduct of the Iraq war are mounting from what seems an unlikely place: the ranks of the military. In early December, eight soldiers sued in federal court to overturn the stop-loss policy that has extended their tour of duty indefinitely. At Camp Buehring in the Kuwaiti desert, Army National Guard Specialist Thomas Wilson, cheered on by his fellow soldiers, demanded that Donald Rumsfeld explain why the troops had to rummage through garbage heaps for scraps to armor their vehicles. Meanwhile, the Pentagon has admitted that some 5,500 enlisted soldiers have deserted since the "liberation" of Iraq began. While these disgruntled grunts don't explicitly challenge the validity of the war itself, their decision to complain formally, or even to quit, strongly suggests a dwindling of faith in the mission.

Pfc. Jeremy Hinzman, of the 82nd Airborne, has made his second thoughts public. As he told me this past March, "The war is bogus. There weren't any weapons of mass destruction, and Saddam Hussein had nothing to do with 9/11. The war was not pursued in self-defense, and as such it is illegal. I decided I could not participate in such a criminal enterprise."

On December 6-8, while his comrades were filing suit and confronting Rumsfeld, Hinzman was making this argument before Canada's Immigration and Refugee Board (IRB) in a bid for asylum as a principled deserter from the US Army. In doing so, he was putting the war itself on trial, articulating clearly the doubts that are beginning to tug at the conscience of some US troops.

Hinzman enlisted in the Army in 2001, making what he calls a typical "Faustian bargain" – trading service for college – and looking for a way to be part of something "bigger than myself," where he might "live for ideals rather than just to consume." But in basic training, as drills focused on "breaking down the human inhibition to killing," he began to realize he had made the wrong choice. Aghast at finding himself joining in training chants like, "What makes the grass grow? Blood, blood, bright red blood," he filed for conscientious objector status, serving in noncombat duty in Afghanistan while his application was in process. Back at Fort Bragg in late 2003, his CO application denied, Hinzman received word that his unit would be shipping out to Iraq in a few days. He and his wife got into their Chevy with their toddler and drove to Toronto, arriving there January 3 of last year. He is the first of three deserters to ask for refugee protection. A ruling is expected in February.

As is typical in a case making a novel claim or with a high public profile, the Canadian government intervened, asserting that Hinzman does not fit the definition of a refugee: someone who is fleeing a well-founded fear of persecution. Canada also argued – and in an interim ruling issued about two weeks before the hearing, the IRB judge agreed – that the question of the war's legality is irrelevant to the case.

The government is not revealing its reasoning, but one can imagine a number of competing concerns pulsing beneath it: on the one hand, a reluctance to embarrass its bullying trading partner; on the other, an intense domestic opposition to the Iraq War. At the same time, Canada may be anxious about the possibility of an American draft, despite the Bush Administration's repeated denials that one is coming. Some thirty-five years ago, an estimated 60,000 men and women resisting the Vietnam War surged north. (In those days, they could simply present themselves at the border and apply for landed immigrant status; since then, Canada has instituted a refugee determination procedure.)

One of them was Jeffry House, Hinzman's attorney. He regrets losing "our cleanest argument": While refugee law states that prosecution is not persecution, House intended to show that it is indeed persecution to punish someone for refusing to take part in a war that is illegal under international law, which sanctions war only when it is undertaken in self-defense or with authorization of the United Nations Security Council.

Still, House explains, even if the illegality of the decision to go to war is off the table, the question of how the war is being waged remains relevant to Hinzman's claim. "What's happening on the ground in Iraq is violating Geneva Conventions and international human rights law," House says. "No one should be forced to participate." From the cells of Abu Ghraib to the living rooms of Falluja, any number of examples can make the case.

Marine Sgt. Jimmy Massey, who served in Iraq during the invasion in March 2003, testified on Hinzman's behalf, explaining, he told me, that "it's the system, not the individual soldier, that is the problem. Even atrocities are standard operating procedure." At the hearing, he recounted in graphic and shocking detail how his unit killed more than thirty innocent Iraqi civilians at checkpoints, "lighting them up" with machine gun fire. He also described how Marines shot dead unarmed Iraqi demonstrators who posed no threat. "I was never clear on who was the enemy and who was not," he said. "When you don't know who the enemy is, what are you doing there?" A Marine Corps spokesman has said that none of the acts Massey described violated rules of engagement.

If Hinzman is denied at the IRB, there are possibilities for appeal. And then, House notes, "the question of the illegality of the war has to be confronted politically." After all, Prime Minister Paul Martin may have promised to help with Iraq's elections, but his predecessor, Jean Chrétien, declined to join the "coalition" forces without a nod from the UN Security Council. And the current Justice Minister, Irwin Cotler, is on record challenging the war under international law. In answering Specialist Wilson's question at Camp Buehring, Rumsfeld smugly told the 2,000 assembled soldiers, "You go to war with the army you have." In his brave stand, Jeremy Hinzman suggests another option: The army can refuse to go at all.

Nightmare in Miami

Christina Madrazo was waiting for the spin cycle to finish in a Miami laundromat when she noticed something that might put an end to her troubles: a law firm's ad in a Spanish-language newspaper that said there were ways undocumented immigrants could become legal. Seven years had passed since Madrazo first snuck across the Rio Grande, fleeing the violence and rejection she had endured as a transsexual in Mexico, and she was tired of hiding. Without legal status, she couldn't seek legitimate work, much less pursue her dream of becoming a fashion designer, so she'd been trying to piece together a living with a series of under-the-table odd jobs. Often she went to bed hungry.

Worse, the fear of being deported to Mexico throbbed constantly at the back of her mind. And if she ever forgot it, every time she looked in the mirror a scar next to her dainty right eyebrow reminded her of the beatings she'd taken from assailants who called her maricón ("faggot") and insisted, with fists and heavy shoes, that she "act like a man." At the attorney's office, she was heartened to learn that sexual orientation was a category recognized in U.S. asylum law. She applied right away.

But instead of granting her the freedom "just to live my life and be myself," the Immigration and Naturalization Service rejected her plea, and on May 4, 2000, took her straight from a hearing to the notorious Krome detention center on the swampy outskirts of Miami. Confined there for about three weeks, Madrazo alleges she was raped by an INS guard. Twice. On April 1, she will file a $15 million lawsuit against the U.S. government, charging the country from which she sought refuge with subjecting her to brutal attack. Her asylum appeal is still pending.

The lawsuit comes amid a string of high-profile embarrassments for the beleaguered immigration agency. Last week, four top officials in the INS were replaced in the wake of revelations that a Florida flight school received notification that visas had been approved for hijackers Mohamed Atta and Marwan al-Shehhi six months to the day after they crashed jets into the World Trade Center.

In addition to the relentless charges of ineptitude and inefficiency�from government inspection agencies as well as from members of Congress on both sides of the aisle�the INS is under a constant barrage of accusations of misconduct. Last year, the Justice Department fielded 4200 allegations that INS personnel had committed, among other infractions, sexual assault, drug smuggling, theft, and even murder.

Many of those complaints involve INS detention centers, where more than 20,000 people are locked up on any given day. The charges�which range from denial of toiletries to threats, beatings, and sexual abuse�are not so different from the sort of grievances filed by inmates in prisons. But INS detainees�who are not serving criminal sentences, but are held pending the outcome of deportation proceedings�are not guaranteed attorneys and, as they have not been sentenced, have no idea how long they might remain shut up in detention. (According to the INS, the average stay is 40 days, but thousands, including asylum seekers, languish for months, even years.) Many don't understand English. It's easy, then, for INS personnel to abuse detainees�to coerce favors with promises of release, warnings of transfer to harsher facilities, or threats of deportation, even when the officials don't really have the power to make such decisions.

Not surprisingly, many detainees are too petrified to protest�which means the accusations on record may be only a small fraction of the actual abuses, advocates say. Madrazo was the exception. She confided in several officials after the first rape and within days filed a formal complaint. She also went directly to officials immediately after the second.

Madrazo's allegations emboldened about a dozen of the roughly 100 women at the 500-bed, low-security facility to come forward with myriad tales of sexual misconduct, ranging from adolescent-style flirtations to downright assault. Women told advocates that guards rubbed up against them or fondled them during searches. They said guards and deportation officers propositioned them, often promising gifts of cosmetics or other contraband in exchange for sexual favors. The women described barely concealed encounters between INS personnel and detainees, from a guard masturbating while a detainee danced for him to ongoing affairs. Many who weren't involved in such liaisons said they were threatened with deportation if they snitched. Two women got pregnant at Krome that year�one after sex with a guard, another after sex with a male detainee. All told, some 15 officers were named. Nine were transferred from Krome to desk jobs after the allegations surfaced. Krome's reform-minded director abruptly resigned.

The complaints launched a federal investigation by the several agencies of the Justice Department�the FBI, the Office of Public Integrity, the Office of the Inspector General, and the U.S. Attorney's Office. So far, it has resulted in two convictions. In the most recent, in October, former INS guard Clarence Parker pleaded guilty to engaging in a sexual act, which he said was consensual. When he was sentenced to three years' probation in December, it was revealed that after Parker lost his job at Krome in the wake of the allegation, he was hired at a Florida facility for juvenile sex offenders. The Miami Herald reported that a Krome supervisor had given him a rating of "very good" on a job reference. The judge at his sentencing ordered him to resign his new post immediately, saying, "It's like putting an arsonist in the fire department."

The other man convicted was Lemar Smith, the guard Madrazo says raped her. Charged by federal prosecutors with two counts of felony rape and two misdemeanor counts of "sex with a ward," and facing up to 42 years in prison, Smith pleaded guilty to the lesser charges. He was sentenced on July 24, 2001, to eight months in prison and a year's probation.

The Justice Department refuses to comment on the ongoing investigation, but advocates for detainees fear that the government has stopped far short of uncovering�and rooting out�widespread corruption and abuse. For Cheryl Little of the Florida Immigrant Advocacy Center, which provides pro bono legal assistance to Krome detainees, "It's déjà vu all over again." In 1990, the FBI was called in after detainees swore complaints that guards at Krome routinely coerced sexual favors from them. Its findings were never disclosed and, as far as advocates know, no disciplinary actions were taken. Some names of INS employees cited by detainees a decade ago come up again and again in the recent complaints, yet these officers remain on duty.

In the meantime, Krome has stopped housing women altogether. As the investigation intensified, most of the women who gave testimony were released for their own safety, and in December 2000, all of Krome's remaining female detainees were transferred to a local high-security prison called the Turner Guilford Knight Correctional Center, where some were put into solitary confinement. Amnesty International summed up the move in the title of a statement on the scandal: "Women Asylum Seekers Punished for State's Failure to Protect Them." Some witnesses to the alleged misconduct have been deported.

After she reported the second rape, Madrazo, too, was removed from Krome�to a psychiatric hospital where she was detained for two months in a ward for severely psychotic people. "Were they trying to say I was crazy?" she asks, her voice trembling. Madrazo prefers not to talk about the suffering of the other patients, but does allow how disturbing it is "when you are clear in your mind to be in a place where nobody is clear in theirs." Even at the hospital, she'd be put in leg irons and handcuffs any time she wanted to go outside for some air. At least she was able to get her hormones and the psychiatrist there was "considerate," she says. On July 24, 2000, in one of the INS's famously mystifying moves, she was abruptly released. But to this day she has nightmares about "that monster" who assaulted her. She expects they'll go away only when she feels she has done everything possible to defend her rights. "I need justice," she says. "That's all. I need to be respected as a woman."

Madrazo, 36, was born to a middle-class family in Coatzacoalcos, a small coastal city in the Mexican state of Veracruz. The youngest of eight children, she remembers a "happy and beautiful" childhood�until she was about seven and "they realized I was kind of different." But Madrazo had sensed since even earlier that "mentally I am a woman, though physically I was born a man." She was constantly bullied by kids at school, and Madrazo's own brothers tried to pound some machismo into her. Even her mother berated her: "Why do you want to wear those girlish clothes? Why do you have to move like that?"

Madrazo found some support from a local transgender hairdresser. "After school I would run away for a little while to see her," she recalls. "I wanted to be like her." But Madrazo could also see the men driving by, shouting insults and throwing things at the salon. "I don't know how she had the strength," Madrazo says. By the time she hit adolescence, Madrazo was plotting an escape from her town; she was also taking female hormones, which she could buy without a prescription at a pharmacy. At 15, she left Coatzacoalcos for good. Until she arrived in South Beach a decade later, Madrazo did not have a home again.

Mexico's larger cities were a little easier to get lost in, but Madrazo was dismissed from job after job when bosses decided that the slender, 5-7 worker with long hair and tapered fingernails was just too unsettling, too wrong, too queer for what Madrazo calls "my very very macho country." Still, she managed to save up the $500 she needed to get breast implants in Mexico City in the mid '80s.

Soon after, Madrazo joined a traveling transvestite show, and lip-synched her way across Mexico, performing at town fairs and hotels. But even this troupe was expected to dress "normally" after the curtain came down. It wasn't really a career, says Madrazo. "It was a place for us to hide and cry together, a place for us to have some kind of community." And the harassment never ceased. In 1991, Madrazo crossed the border from Juárez to El Paso and immediately boarded a bus bound for Miami. "I had heard there was an open gay community there," she says.

But Miami's gay community is one of the most conservative in the country. Sure, some white, moneyed gay men hit the clubs in South Beach and hit on the Latino boys who hang out in them. But politically, there is little contact, much less common cause, between Miami's gay Latinos and Anglos, and even less when it comes to the trans community. "Transgender Latinos face a lot of rejection from white gay men," says activist Luisa Rondón of the nascent group Miami Acción Positiva.

Madrazo found that scraping by in South Beach was as tough as anywhere else. In the early '90s, she was busted twice for soliciting�one charge she calls routine harassment that trans women often face, the other a measure of "how desperate I was." Destitute and homesick, she decided in 1995 to return to Mexico to make one last attempt to "see if I could get a normal life in my country." The answer was a swift and certain no. One friend from the troupe had died; another was wasting away with AIDS. Getting hired in a straight job had only gotten harder. She worked in stores for as long as they'd let her. In 1998, the beating that left the scar on her face propelled her across the border again. This time, she would try to become legal.

She had reason to hope. Immigration law had changed since she had first fled north. On June 16, 1994, then attorney general Janet Reno issued an order that directed immigration officials to recognize gay men and lesbians as a "social group"�a designation required for eligibility in political asylum cases. (The order responded to a 1989 case of a gay Cuban man, the first to be granted asylum by an immigration judge on the basis of sexual-orientation discrimination.)

Though transgender people were not explicitly named as part of that "social group"�nor as a "social group" of their own�in immigration courts around the country, transgender applicants were beginning to win asylum on the basis of sexual orientation or gender persecution. For instance, in 1997, a male-to-female transsexual from Peru was granted asylum because she was "taunted, humiliated, and physically attacked by her family, classmates, teachers, and strangers on the street," and "arrested and detained [by the Peruvian police] for being a gay man." And in a groundbreaking decision in 2000�albeit one that technically applies only locally�California's Ninth Circuit granted asylum to Mexican Geovanni Hernández-Montiel, asserting that "gay men with female sexual identities in Mexico constitute a protected 'particular social group' under the asylum statute." (The Ninth Circuit thus overturned a Board of Immigration Appeals decision that had suggested that Hernández-Montiel merely needed to alter his appearance�essentially, butch up�if he didn't want to be persecuted.)

Indeed, after her first hearing, Madrazo received a letter from the INS informing her that she had conditionally been granted asylum. She merely had to be fingerprinted and go through some other checks. At a second hearing, she was told that the agency was having some doubts: Authorities were concerned that she had left the U.S. and come back, and they had also dug up the old soliciting misdemeanor. ("I am ashamed of it," says Madrazo, "but do I deserve to be deported or raped because of it?")

The INS told her she would have to attend a third hearing before a final decision would be made. Madrazo arrived at the hearing on May 4, 2000, carrying just a small purse. When the judge gave her the heartbreaking news that her request for asylum was denied, she left the courtroom to find two guards expecting her. "Come with us," one said. For Madrazo, "It was the beginning of a big scary movie. What? Why? Me? What is my crime? They put handcuffs on me and I was crying all the way down the elevator and into the car." According to Madrazo's attorney, Robert Sheldon, detentions in cases like hers are extremely rare, even bizarre. "It was a total shock to us," he says.

At Krome, authorities didn't know whether to put Madrazo in the men's dorm or the women's. So they put her in solitary confinement. Isolated and distraught, she struggled to find "the light in my spirit" to keep from crumbling in her dank little cell. Ten days into her detention, Lemar Smith was put on duty near Madrazo's cell. At 138 pounds, Madrazo felt intimated by the guard, who weighs, she figures, 300 pounds.

On Saturday night, May 13, she has detailed in the lawsuit claim, Smith came into her cell and closed the door: "He ordered me to take off my blouse and my brassiere. I asked, 'Why?' He responded firmly and in a commanding way, telling me to shut up and be obedient. Lost in terror, I decided to do what he said. He immediately ordered me to come closer and he forced me down on a chair that was stuck to a table next to the wall. He pulled down his zipper and took out his penis, already erect. He took me by my back, he tightly held my neck and pulled my hair and he ordered me to perform oral sex. I couldn't. He told me not to vomit, took me by the neck, and shoved me against the wall, threatening me, saying that I knew what would happen if I said anything. Immediately afterwards, he turned me over, pulled down my pants, and painfully sodomized me for about 15 minutes until he heard keys and put his penis in his pants." (Smith was not available for comment and his attorney did not answer calls. Though Smith never testified during hearings on the allegations, his attorney maintained that the sexual relations were consensual.)

"My fear was incredible," Madrazo recalls, "I didn't know if anybody would help me or protect me�nobody had given me simple human treatment since they took me there. But I decided I had to fight. I had been punished my whole life since I was little and that made me emotionally strong."

After a few days, Madrazo confided about the rape to a Krome psychiatrist and to a representative from the Mexican consulate, who made a visit to Krome. And with their support, she made an official complaint to a Krome captain on May 20. But the next night, Smith brought her dinner tray to her cell. Later, he returned. Says Madrazo, "He did it again."

"I wanted to scream, but I couldn't," Madrazo recalls. "He told me if I say anything, I'm gonna pay. I felt so angry, so impotent. He called me a bitch and said I deserved it, like he was glad."

This time, Madrazo went to the doctor first thing in the morning, and told what had happened. A Krome official asked her, "How are you going to prove it?" And she gave a ready answer: "I have his sperm." She had kept her soiled underwear as evidence.

Sheldon demanded Madrazo's immediate release, but she was taken to the psychiatric hospital. Weeks later, an immigration judge granted her release�on a bond of $15,000, a sum far beyond Madrazo's means. She remained in the institution while the investigation lumbered on. The FBI had to order Smith to comply with a blood test, but the DNA matched. "That," says attorney Sheldon, "is the only reason they haven't deported Christina."

On August 31, 2000, a month after Madrazo's July release, investigators came up with the indictment. Last May, Sheldon was shocked again when prosecutors let Smith cop a plea. Sheldon suspects that the government didn't want the embarrassment of having to explain why they'd allow a guard to keep watch over a woman he'd raped a week before�better to agree that the sex was consensual. U.S. Attorney Scott Ray, who prosecuted the case, discounts the theory. "I just didn't have proof beyond a reasonable doubt," he says.

What raised the doubt? Some of Madrazo's semen was found on a towel in the bathroom of her cell. While involuntary ejaculations are certainly possible even during a rape, Ray says that Madrazo had no answer for why her sperm would be there, and that raised questions about her credibility. Sheldon scoffs at this reasoning. Madrazo wishes she could laugh at it: "What does it have to do with anything?"

Ray agrees that "there's no such thing as consensual sex" between a detainee and a guard. "That's why it's a crime." And he also figures that Madrazo has a good chance of winning a settlement under the tort claims act for the distress she suffered�the burden of proof is far lower in such civil claims than the "beyond a reasonable doubt" standard required in criminal cases. Madrazo and Sheldon filed such a claim in May 2000, demanding $1 million, but the government's only reply was to ask, in a letter of September 14, 2001, for further explanation of the damages they were seeking�and whether she would settle for less. When such a claim is not dealt with, aggrieved parties may sue, as long as they file within two years of the alleged crime. So that is what Madrazo and Sheldon are ready to do.

Sheldon knows that they are about to go up against "the biggest and most powerful law firm in the world." But both are determined. Says Madrazo, "I can't forget about it. I can't move on with my life unless I know we tried to get justice." Now working part-time doing alterations for a clothing shop, Madrazo knows, too, that the fight will not only be hard. It will be ugly. "Transsexuals have the worst reputation," she says. "They will try to find everything bad about me and use it against me. They will try to destroy me."

Sheldon acknowledges the point, but sees the case a little differently. True, none of this would have happened to Madrazo if she weren't transsexual. But, he says, "I see it more as an immigration issue than as transsexual issue. Somebody comes to the U.S. and asks for asylum, and we put that person in detention? That innocent person seeking asylum? Where she gets raped? Immigrants just can't be treated that way."

Kids In Captivity

Davinder "Jimmy" Singh was only 14 in July 2000 when his father paid a smuggler to take him from his village near New Delhi to a new life with his aunt and uncle in America. It took him about 16 hours to fly from Bombay to New York and a year and a half to reach his relatives in California. In between, he spent nearly two months in a guarded hotel room where he was sometimes handcuffed to the bed at night; three months in a shelter where he threw up every day from being forced to eat everything on his plate, including the meat, which had never been part of his Sikh diet; and a full year in a youth detention center, where he says he was bullied by the larger boys and belittled by the staff. His host for this ordeal was America's Immigration and Naturalization Service (INS), which nabbed the undocumented boy upon his arrival at JFK and detained him as his request for asylum crawled through the system.

While the post-9-11 roundup of Arab and Muslim immigrants has put INS detention in the spotlight in recent months, the plight of the nearly 5000 children locked up by the system each year remains one of America's ugliest secrets. Their average age is 15; the vast majority are boys. Senate subcommittee hearings on a proposed bill to take the responsibility for such children away from the INS are scheduled for Thursday.

According to INS spokesperson Karen Kraushaar, when minors enter the U.S. illegally -- usually for the same reasons as adults, seeking democratic freedoms and opportunity, fleeing persecution or war -- the government takes great pains to locate U.S. relatives and usually manages to turn kids over to them within three days. In the thousands of instances in which such efforts fail, though, the agency places children into custody in one of some 90 facilities around the country -- usually campus-like shelters run by nonprofit agencies, but sometimes high-security prisons that incarcerate U.S.-citizen juvenile offenders. Meanwhile the immigration courts consider whether the child can stay in the country or must be deported. Typically, the process averages a little over a month, says Kraushaar, but it can drag on much longer if there's trouble finding a sponsor or the agency fears that the purported "relatives" are really "snakeheads," smugglers who will sell the kids into indentured servitude or prostitution.

But the system often breaks down, immigrant advocates charge. More than a third of the detained youngsters wind up like Jimmy, languishing in untenable situations for months, and sometimes for more than a year. Many of these children, already lonely and fearful, are further isolated because there's nobody around who speaks their language. During most of his detention, Jimmy communicated in Punjabi only during the two five-minute phone calls he was allowed to make to his relatives each week. Worse, more than half the kids don't have attorneys, despite the labors of pro bono projects around the country, so they often go into hearings with little understanding of what is happening and no knowledge of their legal options. Those with counsel are often transferred to facilities far away from their lawyers.

In one of the most egregious cases currently, Alfredo López Sánchez, a 16-year-old Mayan from Guatemala, has been shuttled from one facility to another seven times over the last two months, sometimes with his ankles shackled and his wrists handcuffed to a chain around his waist. Alfredo arrived in June, seeking asylum from domestic abuse so severe that a psychologist has diagnosed him with post-traumatic stress disorder. He was placed in a 56-bed shelter in Miami popularly known as Boystown. Operated by Catholic Charities under contract with the INS (to the tune of $1.9 million a year), the residence looks like a low-rent boarding school. (Indeed, kids attend school there and begin each day reciting the Pledge of Allegiance.)

Claiming that Alfredo might be planning to run away, in November the INS transferred him to Monroe County Jail for "his own safety," though the jail's contract with the INS to hold immigrant detainees explicitly excludes juveniles. After Alfredo's attorney, Christina Kleiser of the Florida Immigrant Advocacy Center, complained, the INS moved him to a juvenile shelter in Leesport, Pennsylvania, 1200 miles away from one of the few interpreters of his rare native dialect, Southern Low Mam. In December, the INS transferred Alfredo back to Boystown for a day, then moved him to a Miami hotel, then back to the Monroe County Jail, which refused to house him, and then back to the hotel, where for about three weeks he sat in a guarded room all day in a weird sort of house arrest. In early January, the INS brought him back to Pennsylvania, then early this month back to another Miami hotel so he could attend a scheduled hearing there. It took a federal restraining order to keep him in Miami as his case goes forward.

Complaints about such seemingly arbitrary and pitiless actions on the part of the INS have been leveled for years by children's advocates, human rights groups, and internal government reports. A 1985 class- action suit, Flores v. Reno, challenged, among other things, the often lengthy terms and harsh conditions of minors' confinement; its settlement in 1997 after 12 circuitous years of appeals that went all the way to the Supreme Court established national guidelines, requiring, for instance, that children be detained in the least restrictive settings possible.

But a report this past September by the Office of the Inspector General found that the INS was placing too many kids in high-security juvenile prisons, needlessly using restraints on them, and in other ways failing to live up to the 1997 settlement. While the report noted "significant progress," it found persistent problems that could have "serious consequences for the well-being of the juveniles." Of the 4136 unaccompanied minors held for more than 72 hours in fiscal year 2000, the report detailed, more than a third did at least some portion of their detention in "secure" facilities -- that is, in prisons. Having committed no offense other than to seek refuge in the U.S., they were locked in behind bars and razor-wire fences, under the control of guards trained to take charge of criminals.

Now, as the INS considers an agency-wide structural overhaul, separating its service and enforcement branches, plans to completely revamp its juvenile department are on the table at last. In a speech in early February, INS commissioner James Ziglar asserted, "We need to do better protecting unaccompanied minors," a sentiment advocates regarded as sincere, if a massive understatement. Ziglar announced the creation of a special Office of Juvenile Affairs that will report directly to him instead of being housed in the division of detention and deportation.

The bill scheduled for hearings Thursday, the Unaccompanied Minor Protection Act, introduced by California Democrat Diane Feinstein, is far tougher. First, it would guarantee children attorneys and guardians. What's more, it would place the care of these kids in a new office outside the INS, staffed by child welfare professionals. Indeed, some advocates wonder whether Ziglar's administrative reform is a preemptive dodge to keep undocumented children in the INS's control.

Supporters of the Feinstein legislation say it goes a long way toward resolving what they have long regarded as a damaging conflict of interest in the agency: "The INS is both prosecutor and protector," explains Wendy Young of the Women's Commission for Refugee Women and Children. "They have custody of the children and must serve their best interests; at the same time it is their job to deport them." The INS's Kraushaar rejects this logic: "We don't have an interest in any of the outcomes other than to make sure the juvenile enjoys the full consideration under the law and arrives in a timely fashion for his or her hearings."

Official policy, perhaps. But kids don't see it that way. Those who spoke to the Voice might have expressed appreciation for "one nice guard" or "a lady who helped me in the shelter," but all said they felt intimidated, punished, confused, and upset, or "treated like a criminal." And there's little claim of neutrality from INS employees in the field. A deportation officer in the mid-Atlantic region, speaking on condition of anonymity, expressed pride in being able to "help America keep liars who aren't supposed to be here out of the country." At JFK airport, the dentist who administers a controversial X-ray test to determine the age of those it doesn't believe to be under 18 regards himself as defending the border against "drug dealers, human traffickers, and terrorists." He relishes what he calls "the forensic chess game. People come in with false documents, and I have the dental X rays to checkmate them."

While some migrants may indeed come under false pretenses, they can also get caught up as pawns in a larger game. The supervisor of the juvenile division in Florida, for instance, brazenly told a judge at a hearing in Alfredo's case two weeks ago that he would not release the boy to any foster care programs because he was waiting for Alfredo's brother, living illegally in the U.S., to come claim him and be put into deportation proceedings himself.

In a more alarming example, zealous INS officers recently deported 13- year-old Isau Flores-Portillo, a street kid from Honduras, even though his asylum appeal was still pending. Though the INS won't comment on specific cases, attorneys for Isau believe he faced torture or even death back home. They cite the reputation of Central American police for clearing the streets of homeless kids by simply murdering them in a process known as limpieza social -- social cleansing. According to a U.S. State Department human rights report, in 2000, "Honduran security forces were suspected of an estimated 200 extrajudicial killings, many involving persons under 18." The INS has moved to dismiss Isau's asylum case because the applicant is no longer in the country.

Jimmy was luckier. During his 18 months in detention, his case was picked up by a special pro bono project at the tony D.C. firm Latham and Watkins, which has an attorney who speaks Punjabi. The lawyers managed to get affidavits from neighbors in his village who testified to the relentless abuse Jimmy suffered at the hands of his stepmother, and in December, his asylum request was granted. Not only is the INS appealing the decision, it wanted to keep Jimmy in detention during the appeals process. Attorneys won his release earlier this month.

>From his new home in California, Jimmy said he would have run away from home no matter what, but, he added, "I would live on the streets in India rather than go through detention again." And that from a child who spent the bulk of his time in Berks County Youth Center in rural Pennsylvania, a low-security shelter without bars or barbed wire, where there are classes each day and soccer games. (Still, kids held there say they are threatened with being moved to the high- security prison wing down the road if they misbehave.)

But for an adolescent like Jimmy, such benefits were outweighed by the loneliness, boredom, and persistent nightmares. Only since arriving at his aunt and uncle's has he been enjoying what most teenagers take for granted: enough time in a shower to rinse off the soap, pouring himself a glass of juice when he feels thirsty, being allowed to take a pen and paper into his room.

After all, these are kids. The restrictions of detention present special emotional hardships for teenagers. In eastern Washington State, for instance, INS kids are held outside Spokane at Martin Hall, a maximum-security juvenile prison with strict rules that apply equally to the delinquent citizen kids and the INS detainees: No more than five sheets of paper and two family photos in a cell, the handbook asserts. When going to a meal or recreation, it instructs, "come out of your room, close your door, stand by your door facing forward with your hands behind your back until asked to step into the middle of the hallway. . . . Do not talk to anyone."

A Jamaican teen who didn't want her name used spent a month and a half in the high-security wing at Berks. She reports she saw kids thrown and pinned to the ground by guards for the crime of lifting an arm. But what was worse for her was suffering the acute adolescent embarrassment of having to dispose of sanitary napkins in full sight of the boys because there were no trashbins in the bathrooms. In Miami, FIAC attorneys wanted to give a donated Christmas present of a jigsaw puzzle and art set to Alfredo while he was confined to the hotel room with nothing to do and no one who spoke his language. According to the INS, such items are "contraband." Alfredo got no gifts.

The underlying trouble, says Chris Nugent, director of a pro bono immigrant project at the American Bar Association, is that the INS regards these kids "as detainees first and as children second. That's what needs to be reversed."

Yet sometimes the INS doesn't recognize them as juveniles at all. Adults have narrower avenues of relief and face more severe detention conditions than those under 18, so undocumented migrants have a good motive for trying to pass as a minor. The INS says that it must be especially vigilant to keep adults out of shelters that house children, so when people give birth dates that seem doubtful, they are sent for the X-rays that show wisdom teeth growth and whether the ulna and radius bones have fused in the wrist. Advocates say the tests are unreliable and given far too much weight over documents, psychiatric evaluations, and other evidence in cases against young people who genuinely need help.

According to Dr. Robert Trager, the dentist with offices at JFK and LaGuardia airports who has conducted some 1500 such tests for the INS, "[Undocumented travelers] try every trick in the book to get in here, and you've got to feel sorry for them, but I can't let personal feelings get in the way of science." In at least 90 cases out of 100, he finds the patient to be lying, and he claims the tests have an accuracy rate of more than 96 percent.

But Dr. Herbert Frommer, director of radiology at the New York University College of Dentistry, says that "Dr. Trager's position has no scientific validity." In an affidavit, Dr. Frommer cites a "wide variation in the age at which third molars erupt in the mouth" because of differences in "race, gender, and ethnic origin," among other factors. Orthopedists regard the wrist-bone test as equally imprecise. Still, these tests are the best scientific tools the INS has in its effort to piece together what Kraushaar calls the "mosaic" of a person's identity. "The INS is responsible for making sure we know exactly who is seeking entry to the U.S. and verifying their ID includes age," she explains. "What if a terrorist who was 19 said he was 16 and an orphan and the story didn't check out, but we released him and he went and blew up a building? Would it be his attorney that would take the fall? I don't think so."

Thus, Huai Chun Zheng -- or "Danny" -- has been sitting in an adult jail in Georgia for more than two years. The INS X rays pegged him as over 18, though he claims he was only 15 when he was apprehended at a port in Savannah after spending a week under the deck of a ship from China. He applied for asylum, and as his case inched along, he whiled away what should have been vital years "mostly just sitting in my room all day." Between his fear of being returned to China and the noise of the more than 20 men in his dorm, he barely sleeps, he said by phone through an interpreter last week.

His asylum petition has been denied, and Danny has been issued a final order of deportation, but he is still holding out hope that, somehow, the INS will release him to his cousins in New York and that he'll be able to fulfill his dream of going to school. His lawyer, Rhonda Brownstein of the Southern Poverty Law Center, managed to track down a notarized birth certificate for Danny, but the INS doubts its authenticity because it lacks fingerprints. "Do your birth certificates in America have fingerprints?" Danny wants to know. Yet even by the birth certificate's count, Danny turned 18 last month, so the law that would permit him to be released to relatives no longer applies. To date, China has not produced the travel documents needed for his deportation, so Danny sits in limbo, waiting -- but he's not sure for what.

Mohamed Boukrage has no relatives to claim him. Orphaned at age 10 in his native Algeria when a car bomb blew up his parents and sister, he says he went to live with an aunt who threw him out, concerned that his father's reputation as a "traitor" for dealing with French businessmen would harm her own family's standing. So Mohamed stowed away on a boat to France, then made his way to Italy, where, for about four years, he picked up menial jobs and squatted in abandoned buildings. In October 2000 he joined some other workers on a boat he thought was going to Canada, but he was snagged by the INS when it docked in Newark. They took him right to Dr. Trager's office at the airport, where he was pronounced to be at least 18 years old; Mohamed says he was 16.

In May an immigration judge rejected Mohamed's asylum claim, saying that his story lacked convincing detail. His pro bono lawyer, Erin Corcoran of the Hebrew Immigrant Aid Society, appealed, noting that Mohamed was only eight or nine when his family was killed: How much detail could he be expected to remember? Corcoran's final request for reconsideration was denied in January.

All the while, he has been held in an adult INS detention center in Elizabeth, New Jersey, the fluorescent-lit former warehouse near Newark Airport, where he told his story from a cold visitor's room in late January. He passes the interminable time sitting in his dorm reading the Koran, he said. He gets an hour's exercise each day in an enclosed courtyard, so he has not been outdoors in almost a year and a half. Acne runs rampant over his dimpled cheeks.

Speaking through an interpreter, Mohamed said he'd like to learn English, but unlike the juvenile shelters, the adult detention centers don't offer any classes. His vocabulary is limited to the phrases he hears from guards: "Get in line." "Do what I tell you." "No talking."

When he is perceived to have broken a rule -- like when he got into a fight he says started when a larger, older detainee made a sexual advance -- he is sent to solitary confinement, where he is denied the meager communal privileges of exercise and prayer.

According to a psychiatric evaluation by Dr. Alice Kross Frankel, Mohamed is "suffering from both depression and traumatic stress reactions" that are exacerbated by his imprisonment and "altogether inappropriate placement." He was wetting his bed when he first arrived at Elizabeth. He still has nightmares. Dr. Frankel recommended Mohamed's prompt release to the nonprofit youth home Covenant House, which has agreed to take him in.

Meanwhile, Corcoran is racing against the clock to try to win the only relief left: "special immigrant juvenile status," a sort of junior green card for youngsters who are abandoned, abused, or neglected. But even to be considered for this status, Mohamed has first to be recognized as a juvenile, so Latham and Watkins lawyers are preparing a federal suit claiming that the unreliable age determination test violates Mohamed's due process. A hearing is likely later this week.

If they prevail, the INS will have to let Mohamed's case be heard at family court, which has jurisdiction over who qualifies for this special status. But even if family court says yes, the INS has been known to take so long to process such claims that the young immigrants "age out" -- that is, they turn 21 and become ineligible before they can secure the benefit. Mohamed isn't thinking about these legalistic twists. But he is thinking about the future. "I'm still young and can be educated," he said, expressing an interest in architecture. He added, "And I want a place to belong to."

War at the Door

The Circle Line boat that ferries tourists to Ellis Island slows to a crawl as it passes the Statue of Liberty, giving passengers plenty of time to train their video cameras on that beloved beacon of bounty to those old huddled masses. The engine churns, the water sprays, and the looming green lady grows larger and larger. You can't help but provide your own private soundtrack. It hardly matters whether your imagination plays Irish ditties, Mexican danzones, Klezmer doynes, or Korean drums: sentiment gushes in, priming you for the Ellis Island museum, which invites you to envision yourself as a turn-of-the-last-century immigrant who has just disembarked from third-class steerage. And you do.

Though the exhibit doesn't shy away from chronicling the xenophobic currents in American history or the humiliations that greeted those streaming to these shores, it manages to avoid any references to recent debates over immigration or to the myriad snafus of the contemporary system. In an official introduction to the site, for instance, National Park guide K.J. Finley, dreadlocks bouncing from beneath her ranger hat, explains why you might have chosen to make the arduous journey to America in, say, 1905: "You're a peasant and you don't want to die a peasant," she says. "You need a job and you heard there were jobs here." Never once are you called an "economic migrant," which in today's derisive discourse would separate you from a more "legitimate" immigrant, someone fleeing political persecution. These days, new arrivals are slapped into the same categories as welfare recipients -- as genuinely oppressed or merely poor, "deserving" or "taking advantage."

Nonetheless, the inspectors who stood behind the high little desks in the great hall of Ellis Island were the first enforcers of America's abidingly ambivalent immigration policy. The forebears of today's thousands of Border Patrol agents, deportation officers, and other functionaries of the ever expanding Immigration and Naturalization Service (INS), those bespectacled, starch-collared men were charged with excluding from entry, first, Chinese people, and, more generally, as 1880s law put it, "any convict, lunatic, idiot or any person unable to take care of himself or herself without becoming a public charge."

Since then, the history of U.S. immigration policy can be read as the expansion of the list of those who must be refused: 1891 legislation added polygamists and "persons suffering from a loathsome or a dangerous contagious disease"; 1903 law added anarchists. By 1921, baldly racist forces, riding the crest of the Red Scare, won quota restrictions, limiting immigration from any country to 3 percent of its representation in the U.S. according to the 1910 census. Later versions of that act choked off immigration from Southern and Eastern Europe; immigration from Asia had already been barred. And the story of Ellis Island as a gateway to the Promised Land was over.

But the contradictions in American policy -- and the romantic way in which we insist on viewing that policy -- were not. From the day of the first post-Civil War law about whom to let in and how to do it, the agency charged with carrying out immigration policy has had a paradoxical task: to welcome strangers and to shun them. It must, on one hand, defend American jobs against cheap immigrant labor and, on the other, enable business to import low-wage workers; embrace the needy and enterprising and "protect" the nation's founding Anglo-Christian culture and values; succor the refugee and slam the door on the rogue.

This tension tugs at the core of America's founding ideals. Even as the Declaration of Independence listed among the many "Injuries and Usurpations" of the British king his obstruction of immigration to America, Benjamin Franklin panicked about an 18th-century influx of "Palatine Boors," and demanded to know why "Pennsylvania, founded by the English, [should] become a colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them?"

How from the tangle of clashing mandates can today's INS function coherently? By many accounts, it doesn't. Charged with facilitating immigration as well as containing it, the INS mirrors the schizophrenia of U.S. foreign policy, and many agree it is currently failing on both sides of its mission. And that's not only because it is, by the government's own report, a staggeringly inept bureaucracy that remains unaccountable to the public and even to the Congress that sets its agenda. It's the paradigmatic American agency, embodying the nagging question of the liberal state: Is government's role to provide services to people -- or to police them?

In the wake of September 11, the stakes for the INS's striking the right balance are as high as they have ever been. Today, one in five Americans is first generation or foreign born. Even as the INS must reinforce its shields against those seeking to cross the border to do the U.S. harm, it must preserve the openness to the rest of the world that has forged the nation's identity. But the blundering, bunker-minded agency may not be up to the task. This week's look at the INS launches a periodic series of articles that will follow the agency at this critical moment, examining practices in the context of shifting policy. The INS's new commissioner, James Ziglar, recently said that he liked his job because "it gives you the opportunity to shape the future of the country." Given that he reports directly to zero-tolerance attorney general John Ashcroft, it's fair to wonder: Will the glory of American promise celebrated at Ellis Island still be recognized in the kind of country the INS is shaping?

The INS has emphasized the enforcement side of its program at least since the 1950s, according to historian and University of California law professor Bill Ong Hing, pouring as much as three-quarters of its resources into such activities as border patrol, airport inspections, smuggling investigations, and detaining and deporting those lacking legal status. The INS has more armed agents than any other federal agency, including the Bureau of Prisons and the FBI. (And according to an Office of the Inspector General report last year, it couldn't find 539 of its weapons. At least six turned up after being used in crimes. Nor could the INS account for up to 81,000 other items -- among them vehicles, computers, and aircraft, valued at between $68.9 million and $107.6 million.)

In its 110-year history, the INS has been bounced around government departments like an unruly foster child. It resided in the Treasury Department until 1903, when it was transferred to Labor. In 1940, with growing wartime concern about immigration as a national threat�and Labor Secretary Frances Perkins uninterested in turning the Labor Department into a security agency -- it was moved to the Justice Department (doubling in size from 4000 to 8000 employees), where it has resided since, directly under the charge of the attorney general.

Today, more than 35,000 people work for the INS in a Byzantine structure of regional districts and Border Patrol sectors, presided over by directors in what some critics call alarmingly autonomous "fiefdoms." Indeed, the Inspector General report cited "a significant disconnect between what INS Headquarters believes is occurring in the field and what actually happens." California Congress member Zoe Lofgren says she's expressing bipartisan accord when she calls it "the worst performing agency in the government." Such incompetence has consistently been rewarded with mushrooming subsidies: The INS budget increased by 220 percent between 1993 and 2001.

September 11 brought many of the bungles and brutalities to the fore: on one hand, sieve-like screening processes that let visa applicants on terrorist-watch lists get through; on the other, a vast and arbitrary detention system that can "disappear" people who have committed no crime. But the agency has not been called to answer heightened demands for accountability. On the contrary, it has acquired more authority and more money as it has rushed to reinforce the border and to hunt down and detain visa scofflaws of Arab and Muslim descent. In his budget proposal early this month, President Bush requested a 14.5 percent increase, raising the INS allotment from $5.5 billion to $6.3 billion�almost all of it earmarked for enforcement measures.

Security needs notwithstanding, THE fortress fervor has not only led to abuses of civil rights, but also compounded the already catastrophic overload on the service side of the INS. As House Republican Darrell Issa has said, "The legal immigrant gets screwed by the failure of this organization." Between 1994 and 2000 the number of applications for green cards, citizenship, and other benefits increased nearly 50 percent to more than 6 million, overwhelming the agency. Already buckling under the weight of a backlog of 4 million applications, INS staff have clocked 70,000 hours of overtime for each pay period since September 11.

Lines wind around the block at offices where a naturalized citizen applies for a visa for his mother back in, say, Karachi, or an undergraduate requests an extension to finish a course of study, or a green-card holder files a change of name after getting married, or a longtime resident signs up for citizenship. They can wait six hours to turn in the paperwork -- and then for months, even years, for the result. By the government's own calculation, it can take almost four years for citizens to sponsor the immigration of a relative. And more likely than not, the clerks and officials they encounter will be rude, suspicious that even the most routine applicants have cheated their way into the country.

Those fleeing persecution and requesting asylum here may be hurt most by this miasma of mistrust. Thousands end up in detention -- even in high-security prisons -- while their claims crawl through the INS's overburdened courts. T.J. Mills, who served as an asylum officer from 1993 to 2000 (and now works as an attorney assisting immigrants), says he joined the INS to help those who sought refuge in America, but found that the climate was so hostile to applicants that he couldn't take it. "Most of the supervisors were convinced that 90 percent of asylum seekers were lying," he recalls. "It was absolutely an enforcement mentality. And now, since September 11, it's gotten worse."

Commissioner Ziglar, who stepped into the job just weeks before 9-11, recently announced plans to overcome the INS's existential crisis by splitting it into two distinct departments: service and enforcement. Such a division has been recommended for decades, and in addition to Ziglar's administrative scheme, various Congress members have produced legislative proposals for restructuring the agency. Though the plans differ in significant detail, Washington is enjoying what Migration Policy Institute codirector Demetrios Papademetriou calls the "New Immigration Consensus." But the overhaul won't be complete until the end of 2003�and there's no guarantee that the new arrangement won't starve the service side of funds, or that it can repair the management malfunctions.

The INS's justice system needs a similar shake-up if the reforms are going to be meaningful, according to the very judges who hear its cases. Immigration matters do not go through the country's criminal or civil system, but through the agency's own courts, where the attorney general is boss to both prosecutor and judge. He has the authority to override judges' discretion and even to reverse decisions. That, says Susan Martin, director of the Institute for the Study of International Migration, is like the police commissioner being able to overturn a verdict he doesn't like in a criminal case.

Hoping to capitalize on restructuring fever, the union representing the country's 220 immigration judges is calling for a complete split from the Justice Department. Meanwhile, Ashcroft recently announced plans that would curtail immigrants' rights even further, by limiting the scope of appeals they are allowed. With that, he would reduce the number of judges on the Board of Immigration Appeals -- a step that may be used to pick off particular judges Ashcroft regards as too liberal.

Then there's congress. No matter how well-structured the INS might become, it can't help but falter as long as it has to enforce extreme and often contradictory laws.

There's no better example than the huge increase in mandatory detentions called for in the 1996 package of draconian immigration reforms passed by the Gingrich Congress in the era of California's anti-immigrant Proposition 187. Like the Rockefeller drug laws in New York, these new rules boosted the swelling incarceration industry. With little preparation and less capacity, the INS quickly became the jailer of the country's most rapidly expanding prison population. Last year it detained more than 180,000 people, three times the number a decade ago. Little surprise that allegations of abuse abound.

Too bad lawmakers often don't understand how the principle they want to assert in legislation will affect actual people. Many Congress members have expressed amazement and horror when learning of cases like that of an elderly Cleveland woman who suddenly found herself in deportation proceedings (which were abandoned after public pressure) because of a couple of shoplifting convictions in the early 1960s; they simply hadn't reckoned the real-life implications of the 1996 tough-on-crime directives that "criminal aliens" be deported without judicial review.

Before September, momentum was building for "Fix '96," as the lobbying effort to roll back some of the excesses of the six-year-old legislation was called. That endeavor might not be dead now, but, says Susan Martin, "it's certainly in a coma."

Ashcroft is making the most of the moment. But like his shrinking the Board of Immigration Appeals, most of his streamlining proposals really work, says Papademetriou, "to accomplish some things that the conservative wing of the Republican Party has wanted to accomplish all along: to have as truncated a process to deport people as possible. It's returning to the spirit of the 1996 legislation."

But most of the country does not seem to share a renewed spirit for the restrictions of the mid '90s. Despite post-9-11 fears, and a generally supine acceptance of civil liberties restrictions in the name of fighting terrorism, an expected public backlash against immigrants has not been widely inflamed�despite efforts to ignite one by organizations like the Federation for American Immigration Reform, which issued a press release on September 12 blaming "open-border advocates" for the terrorist attacks. Rather, argued Frank Sharry of the National Immigration Forum at the group's annual conference earlier this month, there's a growing public understanding of immigrants' contributions to the cultures and economies of America, and thus less fertile ground for nativist initiatives. A Proposition 187 wouldn't have a prayer today. Indeed, the Senate two weeks ago voted to restore food stamps to legal immigrants who have been in the country five years.

When the Ellis Island ferry turns back toward the city, it heads straight into the harbor, providing a full frontal view of the wounded Manhattan skyline. The people packing the deck look up silently for a moment, then go back to snapping photos and chatting away in Mandarin, Spanish, Norwegian, and Czech. Asked where they come from, the tourists proudly reply: California, Nebraska, Tennessee, and Maine.

Alisa Solomon is a staff writer at the Village Voice

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