By S. Pajot
By Tim Elfrink
By Tim Elfrink
By Kyle Munzenrieder
By Tim Elfrink
By Michael E. Miller
By Kyle Munzenrieder
By Kyle Munzenrieder
Venezuelan citizen Guillermo Pena works as a district manager for the Falk Corporation, one of several subsidiaries of the multibillion-dollar manufacturer Sundstrand. Milwaukee-based Falk builds and sells industrial power-transmission equipment. Its Website advertises the company's products for use in coal mines, paper mills, chemical plants, and oil refineries worldwide. On a link to the site titled "Global Sales Offices," the multinational lists four Latin American locations: Sao Paulo, Santiago, Mexico City, and Miami. That last inclusion on the list would no doubt warm the hearts of local boosters who promote Miami-Dade County as a gateway to Latin America.
Pena formerly managed sales for Falk in Venezuela, but when the company closed its Caracas office in 1996, the 39-year-old supervisor was transferred to head the Miami branch -- a routine personnel move in the global economy. Or so one would think.
Pena landed at Miami International Airport on June 15, 1997. What happened there was gleaned from court records of a lawsuit filed by Falk on July 18, 1997, in U.S. District Court in Miami against immigration officials and Attorney General Janet Reno. (Neither Pena nor federal authorities would comment on the case.)
The dispassionate language of the court documents gives little indication of Pena's frame of mind when he landed at MIA. But it is unlikely he expected a harrowing twenty-hour confinement in a detention center there. And he could hardly have anticipated being ordered back on a plane to Caracas, banned from the United States for five years.
Pena's troubles with Miami airport immigration inspectors had begun the year before. On a business trip to Miami in early February 1996, an immigration officer, for unknown reasons, questioned the legitimacy of his visa. Pena was traveling on an L-1A visa, given to managers or executives of multinational corporations. The visa allows a transferred employee entry to the United States for a stay of up to seven years. In addition, the visa holder is permitted to bypass a normal prerequisite -- maintenance of a foreign residence, which serves as a deterrent against overstays.
The officer canceled Pena's visa and gave him the opportunity to return to Venezuela to resolve the problem rather than appealing the decision before an immigration judge. A month later the State Department, through the U.S. Consulate in Venezuela, issued Pena a new L-1A visa, which he used to travel to Miami on several occasions. But on July 26, 1996, again at MIA, an immigration officer allowed him to enter the United States but ordered him to meet with INS officials in order to clarify his immigration status, which he did.
For almost a year afterward, Pena entered and left the on several occasions without incident. Indeed his wife, Mariela, their five-year-old daughter Diana, and ten-year-old son Enrique were already living in Miami when Pena's flight from Caracas landed at the airport in the middle of June 1997.
This time when Pena presented his passport, the INS accused him of planning to live permanently in the United States because he no longer had a residence or a job in Venezuela, even though neither was a requirement of his visa. In addition, he was accused of hiding the fact that his first visa had been canceled at the time he applied for his second one.
And this time, the same INS office at MIA that had earlier questioned Pena's visa had substantially more power. After twenty hours of detention -- during which time he was allowed no phone calls -- Pena was placed on a flight to Venezuela and barred from re-entry to the United States for five years.
Unlike more than 1000 other foreigners who have also been summarily removed from MIA in a recent eight-month period, Pena had the backing of a huge multinational corporation. The Falk Corporation hired some of the best and most expensive immigration lawyers in Miami to rescue its valued employee. Two months later, after the firm had spent tens of thousands of dollars in legal fees, the government settled with Falk, lifting the ban and restoring Pena's original visa. Under the terms of the settlement, the INS did not reimburse Falk for legal fees, admitted no wrongdoing, and held fast to its contention that the court had no jurisdiction over immigration procedures. Still, Falk's lawyers were satisfied. "We are pleased with the settlement, and we hope Congress will revisit this issue," says attorney Elliot Scherker, who, along with Oscar Levin, represented the company in the case.
In order to understand how a top manager in a multinational corporation could be detained for twenty hours and then banned from the United States, one must return to 1996, when a Republican-dominated Congress passed sweeping legislation in an attempt to stem illegal immigration. The new law rode a wave of anti-immigrant fervor that stood in stark contrast to an increasingly global economy. The legislation, called the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), went into effect April 1, 1997.
Among the new IIRAIRA provisions are increases in the INS budget, more personnel, and bold new authority for the agency's officers. Previously all noncitizens the INS ruled ineligible for U.S. entry were allowed to plead their cases before an independent immigration judge before removal. The hearing had many of the trappings of a trial: access to a lawyer, and to an interpreter if necessary; the ability to question witnesses; and the right to appeal, either to an immigration board or a federal court.
Since April, however, foreigners who set foot in a port of entry such as an international airport have had virtually none of the rights U.S. citizens take for granted. At the immigration checkpoint INS officers may summarily turn away anyone whose papers or verbal responses are suspect. For example, if an INS inspector believes a Colombian arriving on a tourist visa secretly wants to live permanently in the United States, that agent has the power to turn him back. The only check on this authority is a supervisor who must approve the order. And once the order has been given, the visitor can be barred from re-entry for a minimum of five years.
The new procedure is called "expedited removal," and during the hours or days noncitizens are caught in its bureaucratic wheels, they have no access to legal representation. The INS may even deny them the right to make phone calls to a consulate or embassy, or even to relatives in this country. Those who are summarily removed are detained until they leave and they have no right to appeal. In essence, the airport is a private fiefdom of the INS, in which it sits as judge, jury, and executioner.
INS officials in Washington, D.C., were well aware of the potential for abuse under IIRAIRA, and admonishments appear throughout the latest inspector's manual. "This new process gives immigration officers a great deal of authority over removal of aliens and will remain subject to serious scrutiny by the public, advocate groups, and Congress," the manual warns. "All officers should be especially careful to exercise objectivity and professionalism when refusing admission to aliens under this provision."
The manual also advises employees to "exercise extreme caution to ensure a proper decision in every instance in order to avoid attempts at litigation and possibly even further legislation curtailing the agency's newly acquired authority."
But in the law's nine-month existence, horror stories -- of legitimate visitors to the United States being mistreated, expelled, and then barred from re-entry -- have filtered into the media. And critics charge that in dozens of cases, INS officers have abused their newfound authority: putting noncitizens with valid visas into expedited removal, imprisoning them for days, and depriving them of food, water, and even access to restrooms.
The first INS inspectors at Miami International Airport to review visas and passports sit in booths at what is called "primary inspection," located in concourses E and B. All passengers, including American citizens, who disembark from international flights must pass through primary.
Normally the inspectors -- currently there are 39 in the morning and 54 in the afternoon -- review passports and visas, checking the pictures and typography for forgeries. They then ask a few quick questions: Where are you coming from? How long will you stay? How much money are you carrying? Most of the 20,000 travelers a day are passed through within minutes and sent on to baggage claim and customs.
If an inspector has doubts about a document or believes the visitor harbors a desire to overstay the allotted time on a visa, is not in fact a legal resident of the United States, or has a criminal record, he will order the individual to stand along a back wall. The inspector turns on a red light above the booth, and a county employee -- a terminal operations specialist -- takes the visitor to "secondary inspection."
Secondary inspection is the subject of a lawsuit against the INS filed in May in U.S. District Court in Washington, D.C., challenging the new rules on expedited removal as a violation of both the Constitution and congressional intent.
The lead plaintiff in the case is Honduran native Elba Wood, wife of former contra leader Commander Blas, who served as chief of the Atlantic Front of the Nicaraguan Resistance. As Wood relates her experience at Miami International Airport over the phone from her husband's office in Managua, her voice grows indignant. She arrived at the airport on Thursday, August 7, with her three-year-old daughter Silma. American Airlines flight 970 from Managua touched down at MIA shortly after 5:00 p.m. Wood remembers eyeing the long lines in primary and hoping she could still catch her 7:15 connecting flight to Houston, where her sister lives.
It was a little before 6:00 when Wood and her daughter took their turns at the immigration booth. After studying both passports, the INS inspector called over a supervisor, who also reviewed the documents. The inspector asked Wood in English whether she had previously been in the United States. Wood, who says she doesn't speak English well, told the inspector she'd visited in 1994. In Spanish, she requested an interpreter, but the inspector reportedly replied, "I don't speak Spanish."
A confused Wood and her daughter were taken to a waiting room in secondary filled with about twenty other travelers. (The INS, citing security and privacy concerns, denied a request by New Times to view the facilities in either the secondary or the detention areas, where those awaiting removal are kept; Wood and other sources offered descriptions.) To one side of the waiting room are several small cubicles where INS officers conduct interviews to determine whether applicants will be expelled or allowed to enter the country.
Wood recalls pleading with officials to explain what was happening to her. "These gentlemen are severe when they speak with someone," she says. "When I asked whether I would miss my plane, they said, 'Don't ask questions.'" She sat in the room for two hours. When she was finally able to flag an inspector to ask if she and her daughter could use the restroom, she was told they were all too busy to escort her. At around 8:00 p.m. she was summoned to one of the cubicles. An interpreter was present for the 90-minute interview that followed, during which Wood learned she was being denied entry for having committed two crimes during her 1994 visit.
Wood could not understand her offenses. Yes, in 1994, she had come to the States while in the early stages of her pregnancy to visit her sister. During the visit she had health problems that caused complications with the pregnancy; weeks passed while she took tests and awaited the results. Finally her doctors decided to deliver the baby prematurely, and Wood was forced to overstay her visa.
Her second crime? While in the hospital, she received Medicaid from the Department of Health and Human Services. "I didn't know I was going to give birth in the United States," she says. "I came to visit my sister. I am not a drug dealer, robber, murderer, or prostitute. I am not a criminal. I haven't done anything."
Five hours after her first interview, Wood and her daughter were allowed to use the restroom. At around 11:30 p.m., after being fingerprinted and photographed, she was given a small carton of milk and a box of cereal for her daughter. A short while later an INS official transferred her upstairs to a round structure that, ironically, had formerly housed an immigration court. Today the area is a detention center for those awaiting removal.
In the detention center Wood was interviewed by two more INS officers who she says were particularly abusive. "If you entered as a tourist, why didn't you bring $20,000 for Disneyland?" one of the inspectors allegedly demanded. "It's like they are trained to treat people poorly," she complains. "Psychological torture is what it is." When she asked for a pen so she could write down the name of the INS officer questioning her, he raised his voice. "Your visa is fraudulent!" she says he bellowed. "These are federal charges, and your child is going to be handed over to the state!"
The officials also asked Wood if she wanted to apply for asylum. (In order to prevent those with legitimate asylum requests from being returned to countries where they could face danger, INS officials are given wide latitude to recommend such interviews. They're instructed to consider any indication of fear, verbal or not.) "They told me they would send me to Krome, and I said, 'No, no -- just send me home.'" But this was impossible, they told her; the paperwork had already been completed for an asylum request.
At 3:30 a.m. they gave Wood several papers in English, which she says she was unable to read. If she didn't sign them, she was warned, she would face imprisonment. Three and a half hours later she was allowed to call to her mother-in-law in Miami. At 10:30 that Friday morning her mother-in-law came and picked up Silma. Wood spent all of Friday at the airport before being transported by bus to Krome at around 2:00 a.m. Saturday, despite her request to return to Nicaragua. Her traveling companions were men in shackles.
Kept in Krome a full week, Wood told her story to workers for the Miami-based Florida Immigrant Advocacy Center, which is also a plaintiff in the federal lawsuit in Washington, D.C. When it became clear she did not wish to pursue an asylum case, her daughter was returned, and on August 14 the two flew back to Nicaragua, banned from the United States for five years.
Outraged at the treatment of his wife, Commander Blas wrote an angry letter to the State and Justice departments, the U.S. Embassy in Nicaragua, and Sen. Jesse Helms. "I was an ally of the United States government in the decade of the '80s," wrote Blas, whose real name is Osorno Coleman. "Now that the war is over, we are garbage to you, with your acts as shown to my family, you treat us as if we were criminals or drug dealers, enemies of the United States. That is how you Americans are to those that serve you well you treat very badly."
"Congress never intended that this law be applied to people with facially valid visas who never committed any fraud," argues Washington, D.C.-based Anna Marie Gallagher, the lead counsel in Wood's case against the government. And, she alleges, there is no accountability within INS.
Meanwhile, the agency has filed a motion to dismiss the lawsuit on the grounds that it is baseless. A judge is scheduled to hear oral arguments on the motion January 12.
"It's like Miami International Airport has become a police state," says Cheryl Little, an attorney and executive director of the Florida Immigrant Advocacy Center. "The idea is to send as many people back as possible without legal representation. Even if their papers are genuine, by the time they're back home there is no way to confer with them."
Little passed Wood's story on to Anthony Lewis of the New York Times, who included it in a series of columns critical of the new immigration law. When Lewis asked an agency spokesman about the case, he received a response from INS Commissioner Doris Meissner. "This was a complete mistake on the part of the immigration officer, so far as we can tell," she said. "I am ashamed that it happened. I hope that this is a totally isolated incident."
Some immigration lawyers are willing to accept Meissner's good intentions, but they say a "disconnect" remains between Washington, D.C., INS headquarters and district offices like the one in Miami. "Sometimes there is a deviation from national policy and how it is implemented at the local district office," says Charles Wheeler, an immigration lawyer in San Francisco who is following the new law. "Madeleine Albright dictates something and the State Department salutes, but with the INS it's a different matter."
For one thing, there's a question of bias. Critics have long accused the INS of selectively targeting people based on profiles of nationality or race. Of the 1026 non-U.S. citizens expelled under expedited removal at MIA since April, the leading nationalities were Colombian (156) and Jamaican (146). "I'm getting complaints from dozens of people on a weekly basis," says John Atkins, Jamaica's consul general in Miami. "The perception is that we are being singled out. But I can't intercede on a blanket basis. I can only deal with it case by case."
On October 10 Little and staff attorney Joan Friedland took their stories to the Inter-American Commission on Human Rights. The investigative body is part of the Organization of American States, headquartered in Washington, D.C. The commission exists to explore and make recommendations on human rights violations in the Americas. The twice-yearly hearings often encompass offenses such as extrajudicial killings and torture in countries like Guatemala and Cuba, but the two immigration lawyers from Miami found a receptive audience for their testimony on INS detention and expedited removal procedures in Miami.
Little and Friedland spoke mainly of the new difficulties for asylum applicants under IIRAIRA. Yet it was expedited removal that grabbed the attention of the commissioners from Argentina, Colombia, and Venezuela. They grilled Beau Cooper, associate general counsel for the INS, who attended the hearing to present the government's position, recalls Little. "They all had bad experiences at the Miami airport," she says.
Indeed, speaking from his Buenos Aires law office, Commissioner Oscar Fappiano explains how even his position with the OAS has not spared him ill treatment from Miami's INS officers. "We've had problems in Miami," he says. "They assume everyone is a lawbreaker, when in fact it's just a minority."
According to Fappiano, immigration authorities have been overzealous more than once in questioning the validity of his OAS visa. In one incident, while on the way to a commission meeting in Washington, he made the mistake of telling an INS inspector he had come to work. "You have to be very careful what you say to them," he warns. The INS inspector almost didn't let the Argentine into the United States, insisting his visa did not allow him to work while in the country. "I don't know what all the codes mean, and they don't give you a chance to defend yourself," Fappiano says.
Annette Bywater, an INS assistant port director at MIA, declined to respond to specific questions about Wood's case, citing issues of privacy. But she does say, "I don't think the facts are all really there. There is more to a story than meets the public's eye."
Bywater defends the agency's work at MIA. She maintains that about 85 percent of the inspectors are bilingual and insists that in cases where interpreters are needed, the INS provides them. "We always explain everything to the applicant in their language," she says. Russell Bergeron, senior press officer for the INS in Washington, agrees, adding that all inspectors at MIA receive courses in Spanish, despite the fact it is not required by law. Yet a common complaint among those alleging INS mistreatment at the Miami airport is that inspectors were not only unwilling to communicate with them in Spanish but were often hostile when asked to do so.
In response to allegations that the airport detention facility is overcrowded, that people must sleep on the floor without blankets, and that INS officials berate those who try to leave their seats and refuse them access to telephones and even restrooms, Bywater says the area is in fact a pleasant place, with televisions, magazines, and well-stocked refrigerators. There are two pay telephones, and a detention officer feeds detainees every few hours.
She also contends that INS guidelines stress that no one should be detained at the airport for more than six hours. "If we can't get a flight out, they are supposed to be put in Krome," she says. "For example, if they come in at 5:00 p.m. and they don't have a flight, they are taken to Krome for the night."
Nor is everyone who is removed forbidden to re-enter for five years. During the expedited removal process, INS can offer noncitizens the right to withdraw their applications, though they still must leave the country. "I'm not going to bar an elderly lady for five years who overstayed her visa by a few days," Bywater says. In addition, the agency can also allow "deferred admission" if it feels an applicant made an honest mistake that can be rectified without sending the person back home. But out of 2400 secondary investigations at MIA, deferred admission was granted to just 104 people. And only 329 were allowed to withdraw their applications and avoid the five-year ban. (Nationwide, the INS grants the right to withdraw applications to 60 to 65 percent of the people who undergo expedited removal, according to Bergeron.)
INS officials tout their new authority as a boon to visitors because it offers quick resolution to cases. "People don't have to wait as long now," says Bywater, who adds that she loves working at the INS because there's no backlog. She would have some difficulty convincing Perlina Perez and Flor Aquino of that. Both women, who hail from the Dominican Republic, arrived in Miami on May 3 around 4:00 p.m. on American Airlines flight 1510 from Santo Domingo. The two planned to catch a connecting flight to New York City, where Perez intended to visit her daughter, who was recovering from heart surgery. Aquino wanted to buy clothing to resell back home.
The women say they cleared primary inspection only to be collared in customs and taken back to secondary. "They said our visas were fake," recalls the 71-year-old Perez. Both say they were detained in secondary for nine hours. "They never told me what was going on," fumes Aquino from a friend's house in Santo Domingo, where she and Perez had met for a telephone interview. "Since 1979 I've come to buy clothes here. I stay for six or eight days, then I leave."
For the elderly Perez, who can neither read nor write beyond signing her name, the situation was terrifying. She says INS officials browbeat her to sign documents she claims not to have understood. "They treated us like animals," she complains. "I was begging to go to the bathroom. They didn't give us food." After nine hours the two were transferred to the airport detention center. "When they took us upstairs, I asked why are we going back," she recalls. "I've never used drugs. I've never been to jail. I've never had problems with immigration. They told me to shut up and walk." By the time she was allowed to go to the restroom, Perez had defecated in her pants. She finally got the opportunity to change her underwear at 5:00 a.m., thirteen hours after her flight had landed. "My age demands that you treat me with respect," she says angrily. "When you Americans come to Santo Domingo, we treat you well."
Finally, at 11:00 the next morning, the two were taken to a flight leaving for Santo Domingo. Under watchful INS eyes, they waited until everyone had boarded before they were herded through a rear door. Stamped on their passports was a notice banning them from the United States for five years. It's a prohibition that Aquino says will ruin her clothing resale business and render her destitute.
Before IIRAIRA went into effect, all INS inspectors received two to three days of training about the new law. "This was a learning process for all of us," Bywater admits. But INS officials say little has changed in their job under IIRAIRA and that the training concerned mainly how to fill out new forms. "The new law doesn't change what an inspector does," says Bergeron from Washington.
Bywater insists that at MIA not only a supervisor but also one of the ten INS assistant port directors must sign off on every expedited order. "That's the beauty of it," she says. "It provides all these levels of review."
Under the law, the General Accounting Office is also required to undertake a study, slated for release on April 1, 1998, of how IIRAIRA is being applied. "The type of job we are doing is not terribly evaluative," acknowledges Marylane Renniger, senior evaluator on the study. "It's more descriptive. Obviously, if we see something that looks really bad, we will definitely bring that out."
The study will concentrate on five major ports of entry, including three airports: JFK in New York, LAX in Los Angeles, and MIA. In addition, the United Nations and a research project funded by the Ford Foundation are in negotiations with the INS to observe secondary removal. But so far the INS has managed to fend off such oversight.
In mid-October rumors spread among Miami's immigration lawyers of a group of plainclothes INS officials, the Tiger Team, who were coming to investigate agency misdeeds at the airport. Bywater referred New Times inquiries about the group to the district director, who faxed the following statement: "Tiger Team is a name often used in INS to refer to a team that is formed to conduct systematic reviews of procedures, policy, and practices. In relation to Miami International Airport, such a team was formed in mid-September to review the care, custody, and control of subjects within the inspectional process of the airport." But Bergeron, the INS's senior press officer, says he has never heard the term Tiger Team. Further attempts to obtain information from INS were unsuccessful. The review is considered an internal management issue and, as such, "not considered to be public information."
Nonetheless, according to Bergeron, the new rules are working fine. "Fundamentally, the conclusion is that implementation at this stage is going well," he says; however, "We are considering adding an additional level of review." When asked why the INS would consider additional oversight, he explains, "It's a judgment call. Many of the circumstances are not black and white. It makes sense to have another consideration to make sure the consensus is that it's the right one."
The new law's defenders argue that, inevitably, in the course of dealing with the huge number of applicants the INS processes, there will be problems. But if anything, the agency should be commended that there aren't more. Critics of expedited removal admit it has been difficult to find cases, but they cite the haste and hermetic atmosphere under which expedited removal occurs as reasons that more haven't surfaced. "What you are seeing are only those who can hire an attorney and complain loudly," says Charles Wheeler, the immigration attorney in San Francisco. "I shudder to think of how many are returned who didn't complain because they don't want to make a big splash or would rather go back to consult with the consulate and try again."
Critics of the new law also like to raise the analogy of how Americans would react if they suffered expedited removal from a foreign country. "If this happened to a U.S. citizen in another country," Washington attorney Gallagher says, "we'd probably boycott them."
Expedited removal has certainly done nothing to improve the image of the United States abroad. "There have been complaints from people who say they had visas but at the airport they weren't allowed in," reports a Venezuelan diplomat who didn't want to criticize the U.S. government publicly. "Miami is a place that really attracts people to shop, and it will affect ... people who saved their money to come as tourists and are turned around at the airport."
And Elba Wood recalls that as she sat in the crowded waiting room of secondary detention, one of her fellow detainees joked aloud in Spanish: "When they raise a war against these people, I will volunteer." Wood looked around the room and found she wasn't the only one nodding her head in agreement.
But in the end, it may take high-profile cases like that of Guillermo Pena and the Falk Corporation to force the INS to scale back. "Miami is a place where businessmen come every day, and what's going on could adversely affect our economy," says attorney Cheryl Little. If Congress or the courts, based on the errors of district offices like Miami, render a judgment against the law as it now stands, it won't be because the INS office in Washington, D.C., didn't warn its agents in the field.
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