Pubdate: Wed, 22 Sep 1999
Source: San Francisco Chronicle (CA)
Copyright: 1999 San Francisco Chronicle
Page: A23
Contact:  http://www.sfgate.com/chronicle/
Forum: http://www.sfgate.com/conferences/
Author: Anthony Lewis

PREGNANT CITIZEN GETS NO MERCY

YOU ARE awakened by Immigration and Naturalization Service agents knocking
at your door. They tell you they are taking you into detention to be held
for deportation. You say: "But I am an American citizen. I can't be deported."

For the next three years, you keep making that claim of citizenship. You
want it to be decided by a federal judge, but they make you go through an
extended administrative process. You have no right to a government-provided
lawyer if you cannot afford your own. And all this time you remain in prison.

A fanciful scenario? Not at all. That is exactly what INS lawyers say
should happen to someone who is taken in for deportation and claims to be a
U.S. citizen. They take that position in a case now going on in Alaska.

Hawa Said, 21, was born in Yemen. Her parents were divorced, and her mother
left. When she was I year old, her father emigrated with her to the United
States - to Anchorage. In 1996, he became a naturalized U.S. citizen. Under
U.S. law, because she was under 18 she automatically became a citizen, too.

Last year, Said was convicted in the Alaska courts of a cocaine offense,
She was given a three-year sentence, all but 30 days suspended. This past
May, she reported to jail to serve the time. Instead of being released at
the end, she was taken into custody by the INS as an "aggravated felon."
The 1996 immigration law requires detention and deportation of such
convicted aliens. But Said said she was a citizen.

An Anchorage lawyer, Margaret D. Stock, took on the case. She sought the
classic remedy for someone wrongly imprisoned: a writ of habeas corpus.

U.S. District judge H. Russel Holland found last month that Said had "made
out a prima facie case" that she was indeed a citizen. But then, at the
urging of the INS, he changed his mind and said she would have to make that
claim in an administrative deportation proceeding.

Said has now appeared before an immigration judge decides against her, she
can go to the Board of Immigration Appeals. The next move is to the U.S.
Court of Appeals. But if it found facts in dispute, which it likely would,
it would have to send the case down to a U.S. District Court for
fact-finding. Then it would go back up to the Court of Appeals. While all
that goes on - three years is a minimum - Said would remain in prison.

That tormenting process flies in the face of a notable Supreme Court
decision, the 1922 case of Ng Fung Ho vs. White. A person of Chinese
origin, held for deportation, claimed to be a U.S. citizen. The government
said the question should be decided administratively. The court held that
it must be a decision for the courts.

Justice Louis D. Brandeis, writing for a unanimous court, said the
Constitution entitled the claimant to a judicial decision on habeas corpus,
of his citizenship.

Could Congress, in the 1996 immigration law, sweep aside that
constitutional decision? Did it really mean to do so?

The case raises troubling issues of government power. But there are also
human issues.

Said is seven months pregnant. After taking her into custody, the INS sent
her to a facility in San Diego, 2,427 miles away from her home and family;
it brought her back only. when ordered to by judge Holland. She is held in
a state prison with Alaskan criminals.

The case of Hawa Said is an extreme example, but not the only one, of what
must be an INS mind-set. I always ask myself why immigration agents - and
INS lawyers - feel they must grind their targets down so inflexibly, so
mercilessly. The new Immigration Act, harsh as it is, doer. not require
that level of inhumanity.

The commissioner of immigration, Doris Meissner, is a humane person. So is
her boss, Attorney General Janet Reno. But somehow they seem unwilling, or
unable, to infuse the immigration service with the quality of mercy, not to
mention respect for the Constitution.
- ---
MAP posted-by: Richard Lake