Boat-Lift Refugees Fighting Limbo

High Court reviews Mariel cases.
By Gaiutra Bahadur
The Philadelphia Inquirer

The United States wants to deport them, and their homelands won’t take them back. Meanwhile, they wait in detention centers.

They are at least 1,700 stowaways, thwarted asylum seekers, and ex-convicts who have done their time for their crimes.

The vast majority have been locked up longer than a year, stuck in a legal crevice between countries where no one is certain whether the U.S. Constitution applies. The nation’s Supreme Court could soon decide that question.

The justices today will consider whether two Cubans who came to this country as part of the massive 1980 Mariel boat lift – and committed crimes here that led to orders for their deportation – can be held indefinitely. The pair and many hundreds of others in jails and detention facilities on U.S. soil were never formally admitted into the country. In the eyes of the law, they are not really here.

“On paper, we’re still on a boat,” said one Cuban at the York County Prison, an ex-convict who has been behind bars for two years waiting for Fidel Castro to reclaim him. “If they say I’m still on a boat, then put me on a boat, and I’ll find my way back to Cuba.”

In 2001, the Supreme Court decided the government could not hold foreigners indefinitely if it could not deport them. Usually, the impasse involves citizens of countries, such as Cuba and China, that do not have repatriation agreements with the United States. It is also difficult to deport people to places with redrawn or disputed borders, such as the former Soviet Union and the Palestinian territories.

The court set six months as the threshold for freeing detainees. The decision applies to those who stole past the borders or overstayed valid visas. But it is unclear whether it applies to those stopped at ports of entry or, like the Mariel refugees, were paroled but not technically accepted into the United States.

Hollywood this year offered its version of this bureaucratic limbo in The Terminal, with Tom Hanks as a citizen of a fictional Slavic nation that blips out of existence while he is en route to New York. He arrives as a man without a country, unable for nine months to go home or enter the America that lies beyond the doors of the airport.

In real life, such waits unfold against a backdrop of orange prison jumpsuits and Plexiglass dividers. According to data provided to The Inquirer by U.S. Immigration and Customs Enforcement, there were 1,776 people detained as of Sept. 8 who had been ordered deported six months before or earlier.

It costs U.S. taxpayers an average of $90 a day – or about $33,000 a year – to hold someone in immigration custody, the enforcement bureau said.

Two on the list have been held for 19 years. A total of 33 have waited in jail for more than 15 years to be deported. All are Cubans, who make up more than 40 percent of the list.
County jails and federal detention centers in Pennsylvania and New Jersey hold one in five detainees on the list. Twelve are at the Montgomery County Jail, and 76 – the most in any one facility in either state – are at the York County Prison.

Many of their fates could be affected by how the Supreme Court resolves a lower-court split in the cases of two ex-convicts who were part of the Mariel exodus, legal experts say.
One federal appeals court ruled that Daniel Benitez, an armed robber from Florida in immigration custody since 2001, could be held indefinitely. Another affirmed a lower court’s order two years ago to free Sergio Suarez Martinez, convicted on attempted sexual assault and other charges, from detention in Oregon.

Government lawyers argue that ordering their release would “provide an open channel for foreign governments to thrust their unwanted citizens and dangerous individuals into American society.”

The detainees and their advocates say they have merely been dumped into a legal no-man’s-land by geopolitical forces bigger than them. “I don’t think anybody sugarcoats the criminal records these folks have,” said Don Kerwin, head of the Washington-based Catholic Legal Immigration Network. “At some point, after you’ve served many years, there are obvious human-rights problems here.”

Teodulfo Carrero Rubi, 46, had just finished a two-year sentence in Havana for stealing a pair of pants when Castro opened the port of Mariel to anyone who wanted to leave. “Coming from jail, I knew it was going to be hard for me to live in my country,” Rubi said in an interview at the York County Prison. “Whatever happens, they put you back in jail. I was scared. . . . They pick you up and put you in jail for nothing.”

So he joined the swell of 125,000 Cubans who fled to the United States in 1980. Twenty percent, most held for political crimes or misdemeanors, had come from Castro’s jails. Private boats under the watch of the Coast Guard fetched them to U.S. shores.

President Jimmy Carter welcomed them with what he called “an open heart and open arms.” He used a tool deployed since the 1960s as an emergency floodgate for waves of refugees too large to handle otherwise: He “paroled” them into the United States. They were given work permits, tens of millions of dollars in public benefits, and the right to hold green cards. The Mariel Cubans were here to stay.

“I was thinking,” Rubi said, “maybe I can have a better life in another country.”

As it turned out, he had a life that unfolded mainly behind bars. He was busted twice for possessing cocaine. In 1986, he shot a man in the chest during a street fracas and, a year later, was convicted of first-degree manslaughter.

By that time, about 84,000 Mariel Cubans had become legal permanent residents, a fact used by government lawyers to show that the detainees had been given their chance.

“The United States . . . offered the aliens the opportunity to become lawful permanent residents,” they argue in the Benitez case. “Petitioner and the other aliens responded to those offers by committing crime after crime within this country.”

Criminal records barred some from becoming permanent residents. Rubi said he simply did not get around to it. The oversight would make all the difference when the state released him, in April 2003, from 16 years of custody.

He had hoped finally to start a new life with his two grown children and the woman he married while in prison. But he was transferred immediately to U.S. immigration custody under a retroactive 1996 law mandating the deportation of certain criminals. He has not seen his wife, a medical secretary living 300 miles away in Albany, N.Y., or their 7-year-old daughter since.

“That took a lot out of her, to find out her daddy’s not going to come home to be the daddy he hasn’t been,” Lillian Carrero said. “He just needs to be given a chance. If his time is done, he should be able to show society he’s sorry for what he’s done and to live a normal life.”

Cubans in deportation proceedings can have their detention reviewed annually by a two-person panel. The government said Mariels had been released about 9,000 times through this process since 1987 and in half of those cases had committed new crimes. But advocates say the process is flawed.

“There was a real lack of representation,” said Kerwin, of the Catholic Legal Immigration Network. “We’d find there wasn’t a 12-month review as required. Or if there was, there didn’t seem to be an actual release.”

The panel found on Nov. 21 that Rafael Macias Rivera, a detainee at York, should be released to a Bureau of Prisons halfway house as soon as one could be found. Almost year later – and 18 months after his incarceration on robbery and burglary charges ended – he is still in custody. A spokesman for Immigration and Customs Enforcement said the panel was looking into his detention.

“I don’t know why I’m still here,” Rivera said. “I did a lot of mistakes I regret. But right now, this is unjust. I paid for what I did to society, and they should let us go.”

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