Foreign-Born Prisoners With Nowhere to Go Fill US Jails

Khaled Said knows that he is not a model citizen. He's been convicted of fraud and trespassing as well as cocaine possession - twice.

"I'm not a choir boy," says Mr. Said, wearing a bright orange prison uniform, handcuffs, and leg shackles. "But I'm not a threat to society. I didn't commit a crime heavy enough for me to spend the rest of my life behind bars."

Yet that is exactly what he's facing. Said, a Palestinian who has been a legal resident of the United States since 1979, is literally a man without a country. He is one of about 2,800 criminals being held by the Immigration and Naturalization Service (INS) who cannot be deported. Either their home countries will not take them or the US doesn't have diplomatic relations with their nations of origin.

In INS terms, they are "lifers," and as their numbers grow - at twice the rate of all other federal and state prisoners - they have found themselves at the center of a nationwide debate between lawmakers and human-rights advocates about prison overcrowding and appropriate treatment of non-American criminals.

The number of prisoners under INS control has surged recently because of laws passed by Congress in 1996. The changes increased the number of crimes that are considered "aggravated felonies" - or crimes that require noncitizen offenders to be deported. According to Russ Bergeron, a spokesman for the INS in Washington, any drug conviction beyond possession of marijuana is an aggravated felony. All violent crimes also fall into that category.

If noncitizens are convicted of such a crime but cannot be deported, they stay under indefinite incarceration, unsure when, or even if, they will be released.

Said was convicted of possession of crack cocaine in 1996. Born in the West Bank town of Batunia - about 10 miles from Jerusalem - he came to the US at age 10 and was allowed to enter with only a birth certificate. Since then, he has lived in Chicago with other family members, but he never became a US citizen and doesn't have a passport.

After his conviction two years ago, he served his sentence in an Illinois state prison. Now he is in the custody of the INS.

Running out of space

But with the number of nonremovable prisoners growing by 10 percent a year, the INS has had trouble finding places to put them. Many INS detainees like Said are housed in dozens of rural jails like the Victoria County Jail here, 100 miles southeast of San Antonio. And they will stay in the rural jails until the US Bureau of Prisons can build enough space to house them.

The decision to send detainees to rural jails has already sparked some controversy - a report released last month by Human Rights Watch condemned the policy, calling the small prisons "a secret detention world which is out of the public eye and subject to little scrutiny by the INS itself."

Live an honest life, or else

But Mr. Bergeron defends the current system, saying Congress has decided that immigrants who come to the US have "the responsibility to live as honest, productive, law-abiding members of society. If they fail that obligation, they run the risk of forfeiting that privilege."

Still, advocates for these legal immigrants say the policy unjustly punishes those who happen to come from countries that the US doesn't get along with - such as Iraq, Libya, and Cuba.

"It's about international politics instead of safety or criminal justice issues." says D'Ann Johnson, an lawyer based in Austin, Texas, who represents Said and several dozen other inmates who are under indefinite incarceration with the INS.

The Human Rights Watch report also condemns the policy of indefinite incarceration, saying, "Arbitrary detention is clearly prohibited by international law." The group adds that "detention becomes arbitrary when detainees, who are not serving a criminal sentence, do not know when they will be released and have no genuine mechanism to challenge the indefinite nature of their detention."

In the end, though, many observers say that Said and other legal residents like him must abide by the laws of the country or be prepared to deal with the consequences. "A person who repeatedly breaks our laws has taken the opportunity we gave them and blown it," says Dan Stein, executive director of the Federation for American Immigration Reform in Washington. "Life doesn't provide unlimited opportunities."