PART 2 — SECRET PRISONERS
With constitutional rights lacking, even for those with no record of crime, immigrants languish, pawns in a burgeoning law enforcement system that is defined by secrecy
YOON S. BYUN/GLOBE STAFF
Irene Bamenga had her plane ticket to go home. The 29-year-old, carrying a bag of medications to treat a life-threatening heart condition, had planned to return to France and wait out her application for permanent residence in the United States before rejoining her husband in Lynn.
Bamenga had stayed in the United States much longer than she was supposed to under a visa waiver program, but she was exactly the kind of person immigration agents are officially encouraged not to put in jail: She had no criminal record, a husband in the country legally, and a heart condition — and she was trying to leave on her own anyway.
Still, when border agents discovered Bamenga was here illegally as the couple tried to drive to Canada for her flight in July 2011, the young woman ended up in handcuffs and a belly chain, joining 33,000 other immigrants across the country that day who were prisoners of the Department of Homeland Security.
Twelve days later, Irene Bamenga was dead.
“She was terrified,” her husband, Yodi Zikianda, recalled of the day of her arrest. “She was telling me, ‘I cannot stay in jail.’ ”
He repeatedly called the phone number that border agents gave him to try to help his wife get out or to at least get her medications, but he couldn’t get beyond taped messages.
If Bamenga had been accused of a crime, she would have been entitled to a public court hearing within hours of her arrest, giving her a chance to state her case and to plead for treatment of her congestive heart failure. But as a prisoner awaiting deportation inside the nation’s most secretive detention system, she had no right to a hearing or a court-appointed lawyer. Most important, she had no reliable access to the six medicines that she needed to stay alive.
For days, as Bamenga was transferred from one New York jail to another, she either got no medications or reduced doses, even though she told jailers she was struggling to breathe and had palpitations. She even filed a written request for medical help. Finally, on the 12th day of detention, her cellmates found her lying on her bunk, eyes wide open, not breathing — dead after receiving what the immigration system’s own investigators concluded was poor medical care.
“It was all wrong,” said Zikianda, a parking attendant in Boston and an engineering student at Wentworth Institute of Technology. “Why couldn’t they just let her go?”
Irene Bamenga paid the ultimate price for her encounter with immigration authorities, but countless others have suffered from its toxic combination of insensitivity and lack of public accountability, a yearlong Globe investigation has found.
Every day, Immigration and Customs Enforcement, or ICE, detains more than 10,000 immigrants who have no criminal records and sometimes deep ties to the United States, holding them for weeks and often months in jails where they have fewer rights than criminals and little access to the outside world. It is a system that separates parents from young children, locks away the elderly during their twilight years, and sometimes puts the sick at great risk.
Yet, that same agency has released 8,500 criminals — including as many as 201 murderers — to US streets over the past four years because their home countries wouldn’t take them back, as the Globe reported on Sunday.
Such inconsistencies fester in a fast-growing detention system that provides little information about the people it arrests. ICE’s network of detention centers — almost all of them originally designed to house criminals — has quadrupled in size since 1995, but ICE doesn’t release even the names of detainees, purportedly because it needs to protect immigrants’ privacy.
The information that ICE officials do release, such as the calculation that detainees typically remain locked up less than a month, masks painful individual stories. On one day last January, nearly 3,000 immigrants had been locked up for more than six months — and close to 900 for more than a year — while they went through the deportation process, according to ICE records released last month to the American Civil Liberties Union.
Despite the official secrecy, however, immigration detention stories do surface, making it clear why the acronym ICE strikes fear into so many immigrants’ hearts:
■ A Texas father disappeared for four days into the detention system after a call to tell his family he had been arrested by border agents on the way home from work one night earlier this year. Only after a Globe reporter began asking questions about Jesus Tovar’s whereabouts did the family learn that he had been shuffled from jail to jail and pressured to accept deportation back to his native Mexico.
Tovar, whose children include US citizens though he has been here illegally since 2001, was eventually freed, but few immigrants have journalists making calls about them.
■ An Arizona mother, brought here from Mexico as a baby, was locked up for seven months in an immigration prison, away from her children, after one of the nation’s best known anti-illegal immigration crusaders raided the restaurant where she worked. Luz Tamayo now faces deportation to a country she scarcely knows.
■ A Massachusetts man faced deportation and was jailed after he attempted to do what the government asked in 2003, voluntarily reporting that he was here illegally. By the time immigration officials finally sent Elmaati Hachani a deportation hearing notice almost eight years later, he had moved and the notice went to the wrong address. Hachani then was dramatically arrested in front of his pregnant wife and locked up for the next two months; she miscarried days later.
Immigration officials dropped the case against Hachani on Friday after numerous questions from the Globe.
Although only about one in 30,000 detainees dies in custody, Irene Bamenga’s case was in no way isolated: 10 other detainees died in immigration custody in 2011, including 55-year-old Jose Aguilar-Espinoza, who died of heart problems in California. Aguilar’s family contended in a lawsuit that his death could have been prevented, arguing that jail officials should have known that he had a pacemaker and that authorities failed to render immediate care for his serious medical needs.
Meanwhile, in Pennsylvania, a 47-year-old detainee from China hanged himself with a bed sheet, one of perhaps a dozen suicides in custody since 2003, based on ICE records.
Media reports about deaths in custody have spurred attempts at making the system more transparent, such as publicly listing the names and causes of death of the 131 detainees who have died in detention since 2003. President Obama has tried to lift the veil further, while pushing immigration to focus enforcement on criminals rather than the majority of the nation’s 11.5 million undocumented immigrants. Immigration officials’ own reports have concluded that locking up most illegal immigrants is both unnecessary and expensive — $122 a night per detainee.
But reforms have been slow to catch on in a system that has become the nation’s largest law enforcement network. About 90,000 federal employees work for the four main agencies that make up the immigration system, with a combined budget of $20 billion — dwarfing even the $10 billion and 40,000 employees in combined resources of the FBI and the US Marshals Service.
Last year, ICE detained a record 429,247 foreign nationals — more than double 2001 levels — and deported 396,906 immigrants, at least 180,000 of whom may have been here illegally but had no criminal record. By ICE’s own estimate, many thousands of them could have been spared deportation under its 2011 policy of “prosecutorial discretion,” or selectively enforcing the law.
In Irene Bamenga’s case, records show that the border agents had filled out a form that could have cleared the way to let her go. On the form, they listed no threat posed by Bamenga except that she was “likely to add to the illegal population.” But agents did not list her medical condition, which could have been a reason to let her fly to France on her own rather than face detention. The agents detained her anyway. Their names have been blacked out in records obtained by the Globe under a Freedom of Information Act request.
ICE, which took responsibility for Bamenga from the border agents, says they acted correctly, noting in a statement that Bamenga knew that she would be subject to immediate deportation without right of appeal if she stayed in the United States longer than 90 days. She had been here since 2005, and ICE officials said that deportation of people who overstay their visa waivers is essential, or else everyone would feel free to stay indefinitely.
But others say Bamenga’s imprisonment was both unnecessary and wildly disproportionate to an immigration violation — yet typical of the harsh treatment meted out to many illegal immigrants.
“The problem is, Ms. Bamenga is just a really horrible, specific example of the system,” said Joanne Macri, head of of the Criminal Defense Immigration Project for the New York State Defenders Association, who raised questions about the case after Bamenga’s death last year.
If Bamenga had been charged with a crime, Macri said, it would have been simple for her to get medical care within hours — at the bail hearing guaranteed to newly arrested defendants, citizens or not — under the US Constitution.
“I would have said, ‘Your Honor, I’m sick,’ ” Macri explained.
But the status of immigrants isn’t addressed at all in the Constitution or its amendments, and the border control system that grew up over the course of the nation’s history provides few of the due process safeguards of the criminal courts.
Immigration officials say they decide whether to detain someone, within “a reasonable period of time,” and the immigrant will be brought before an immigration judge “as soon as is practicable,” and that can depend on the judge’s docket.
Thousands of detainees like Bamenga get no hearing at all because their deportation is automatic, meaning that their fate is essentially decided by the people who arrest them.
“There is no rhyme and reason to a lot of this,” said Macri. “It all depends on who picks you up, who encounters you, how they feel about you, and what their bed space looks like to determine if you’re going to be one of the lucky ones or the unlucky ones.”
‘Like I had killed someone’
Jesus Tovar was not one of the lucky ones.
The 36-year-old father of five had been living illegally in Mission, Texas, near the Mexican border, for more than a decade, but he had no criminal background when Customs and Border Protection agents arrested him last March while he was on his way home from work laying tile. Tovar said the agents told him they were looking for smugglers, but caught him instead.
After an initial call to his family to report he’d been arrested, they heard nothing more from Tovar or anyone else; they could not even find his name on a Department of Homeland Security website set up by the Obama administration to help families find detained loved ones.
Over a nine-day period, he was shuffled five times from one jail to another and forced to sleep on concrete floors, or in a windowless room with more than 100 other men.
After Tovar had been missing for four days, his wife, Gloria, called the Globe, which had been in contact with a lawyer that knew the family. The Globe eventually found him in the East Hidalgo detention center, about 40 miles from the family’s home. Initially, the jail denied to a Globe reporter and to the family in separate calls that Tovar was there, before acknowledging he was there temporarily.
Like Bamenga, immigration agents put Tovar in shackles and a belly chain when they transferred him from one jail to another.
“They put me in handcuffs like I had killed someone,” he said in Spanish. “They tied my feet, my hands and my stomach. I was like, ‘I haven’t killed anyone, what is this?’ ”
Finally, that same month, ICE released Tovar on personal recognizance, after the Globe inquiry into his case. He has a deportation hearing scheduled for next year in immigration court.
A crucial conviction
By the time President Obama announced a two-year reprieve from deportation for young undocumented immigrants this June, it was too late for Luz Tamayo.
Tamayo, a 28-year-old manager of a Sizzler restaurant in Phoenix, might have been a perfect candidate: She arrived from Mexico as a baby in her mother’s arms. But when it became clear that her good grades and flawless English were useless without legal residency, she bought a fake Social Security card in her own name and went to work.
Her lawyer likened the act to a college student getting a fake ID, but for Tamayo, it was a mistake that could get her deported.
In 2010, Maricopa County Sheriff Joe Arpaio, the 80-year-old Springfield, Mass., native known as “America’s toughest sheriff,” raided the Sizzler as television cameras recorded the event, arresting Tamayo and several other Latino employees for identity theft and other crimes that day.
After a month in jail, Tamayo pleaded guilty to identity theft, even though the court warned her in writing that it was a felony conviction that could get her deported. Tamayo said she didn’t realize the implications — her lawyer at the time did not return calls for this article — and she was desperate to return to her family, which was running low on money and food.
“Nobody else was going to support my kids,” said Tamayo, who has no other criminal conviction. “I was just working. I wasn’t trying to go out there and have everything. I was just trying to live, day by day.”
Instead of being released at the end of her 90-day sentence in September 2010, Tamayo was transferred to an ICE jail in the Arizona desert for another seven months. She begged immigration to let her out on bail so that she could return to her children, Ivan, 9, and Erika, 7, who were being cared for by relatives. But the immigration officer, according to Tamayo, said the more she fought, the longer she would be in jail.
ICE said Tamayo is ineligible for Obama’s program because of the felony conviction. “Ms. Tamayo’s criminal history makes her ineligible for discretion under the agency’s current guidelines,” said Amber Cargile, an ICE spokeswoman in Arizona.
Sheriff Arpaio, who has come under fire for allegedly discriminating against Latinos, stressed that identity theft is a serious crime that can damage the victim’s reputation for years. But, in Tamayo’s case, there is no record that she harmed anyone. She was not ordered to pay restitution to the Social Security number’s real owner.
Nonetheless, Tamayo’s immigration lawyer said, there’s a good chance she’ll be jailed again or deported, though she is free on bail now.
“I’m so discouraged, having seen this going on for so long, having seen so many good people be deported because the law is so harsh,” Suzannah Maclay said from Phoenix. “It wasn’t her choice to come here.”
Trying to follow the law
Elmaati Hachani of Westborough, 48, did what the US government asked him to do — and got arrested for it.
The native of Morocco had stayed here illegally after his visa expired in 1996, but after the Sept 11, 2001, terrorist attacks, he willingly stood in line at the John F. Kennedy federal building in Boston for a controversial new program that required foreigners from certain Arab and Muslim nations to register with immigration officials. Not since World War II, when the United States detained families of German, Japanese, and Italian descent, had the government specifically targeted people like this.
Hachani’s friends, also here illegally, called the program a witch hunt and did not register, but Hachani hoped that signing up in 2003 would help his effort to stay.
“I was one of the people who went there, obeyed the law . . . and registered themselves,” he said recently.
But by admitting that he was here illegally, Hachani had unwittingly set himself up to be deported. Immigration officials told Hachani to call a toll-free number to find out when his deportation hearing would take place. For years, Hachani called every month, but no hearing was scheduled.
Finally, Hachani stopped calling around 2009 and moved from Revere to Westborough, where he runs his own cleaning company. In a crucial misstep, he failed to notify immigration agents of his new address.
When immigration officials finally notified him that there would be a deportation hearing, they sent the letter to his old address, and Hachani never saw it. The hearing happened anyway and he was ordered deported in January 2011, making Hachani a fugitive. Immigration agents found him at his new home within weeks.
In March 2011, eight years after Hachani told US officials he had overstayed his visa, plainclothes immigration agents descended on him as he got into his car for work and slapped him in handcuffs. Then they knocked on the door, handed his terrified, pregnant wife a citation, and told her Hachani was going to jail.
The next month, the Obama administration announced it was discontinuing the special-registration program because it was little help in detaining terrorists.
By then, Hachani was in jail. He said he spent 65 days in Plymouth County House of Correction, which holds ICE detainees, until he was released on bail to fight for a new deportation hearing.
After inquiries from the Globe, immigration officials last week offered to drop the case against Hachani and his wife, said Jeffrey Rubin, his Boston lawyer.
“He’s overwhelmed with joy and relief,” Rubin said. “It’s the culmination of a long road filled with anxiety and despair and trauma.”
Immigration officials say they are trying to make their system more humane, improving health care and offering more recreational opportunities in detention, while allowing more immigrants to remain free while they await their deportation hearings.
But critics say the the system has grown so big and sprawling that no central authority really controls it, despite court rulings and presidential initiatives.
“You can have all these plans coming from the leadership, but if it does not turn into serious change on the ground, then we have a problem,” said Andrea Black, executive director of the advocacy group Detention Watch Network.“The people actually in detention are suffering as much as ever.”
Similarly, immigration officials take pride in having reduced the average detention for immigrants from 40 days to 26 since 2001, the year that the Supreme Court ruled that foreigners with final deportation orders in general should not be imprisoned longer than six months. That ruling, in a case called Zadvydas v. Davis, and a second ruling in 2005 have spurred immigration officials to release 8,500 criminal noncitizens who have been in the United States since 2008 because their home countries did not agree to take them back.
But many nonviolent immigrants remain in detention far longer than six months, many as their cases drag through the system. Data released last month to the ACLU as part of a lawsuit show that ICE holds hundreds of detainees for more than a year, often without granting them a bond hearing where they could argue for their release.
“The first question you need to ask is, why does this person need to be detained in the first place?” said Judy Rabinovitz, deputy director of the ACLU Immigrants’ Rights Project. “People are being locked up without a bond hearing, and it’s affecting them, affecting their families.”
The refusal of immigration officials to release detainees’ names makes it difficult to investigate the cases of some of the longest-held prisoners, but one case in Massachusetts shows how an extraordinarily long “administrative detention” could happen.
Juan Carlos Hernandez came to the United States on the Mariel Boatlift, a tidal wave of Cubans who came by private boat to south Florida in 1980. He was never officially admitted to the United States, but was allowed to stay under a special parole agreement. By 1984, Hernandez was in prison in New York for burglary and theft, putting him on a track to be deported. But Cuban leader Fidel Castro would not take back the people who left in the boatlift, so US immigration officials kept Hernandez locked up after his release from New York custody in 1991. He remained in immigration custody until his release from Fort Devens in 2005.
Even the 2001 Supreme Court ruling prohibiting indefinite detention of immigrants did not help Hernandez, because it did not apply to Mariel Cubans who were never legally admitted to this country. Hernandez remained in prison for those 14 years after his prison term until a 2005 Supreme Court ruling said the government cannot indefinitely imprison Mariel Cubans either.
Hernandez, who did not want to comment for this article, was a broken man in a wheelchair by the time he was released, but ICE officials say they followed protocol. An immigration spokeswoman said that Hernandez was “afforded numerous parole interviews” during his incarceration, but that ICE’s associate commissioner for enforcement ruled that his release would not be in the public interest.
Kevin Barron, a Boston-based lawyer who represented Hernandez, had argued that his freedom should be decided by a regular judge in a public courtroom.
“Any kind of proceeding that isn’t open, that isn’t public, is subject to abuses,” said Barron.
But the death of Irene Bamenga may best underscore how difficult it will be to change the massive, secretive detention system that the United States has built since 9/11.
The month before Bamenga was arrested in July 2011, ICE director John Morton issued a memo urging immigration officials to use “prosecutorial discretion” in deciding whether to lock someone up. They should be arresting people who represent a threat, he wrote, while going easy on people such as victims of crime, women nursing children, or people with serious medical illnesses.
Immigration officers, Morton said, can “decide not to assert the full scope of the enforcement authority available to the agency.”
But the very next month, Border Protection agents at the New York-Canadian border brought the “full scope” of federal authority down on Bamenga, and ICE detained her even though she appeared to qualify for lenience under Morton’s memo.
Yodi Zikianda tottered through the iron gates of the new cemetery in Moissy-Cramayel, a tranquil village in the northern region of France, heading past family members and friends toward the grave of his late wife, just to touch the new gravestone he had placed there in her honor. It was his first visit since she was buried.
Family members stayed by his side, one leaning on him for comfort, but Zikianda said nothing. All he could do on the brisk October day was stand there, sobbing quietly, thinking how different things could have been.
On the night of her arrest, Bamenga had been processed at the Allegany County jail, near Buffalo, and the booking officer asked if she was taking any medication.
“Lots of them,” she had replied, according to an observation report filled out in the booking process. She even brought them with her, and turned them over to ICE officers.
But it would take four days before Bamenga received any medications. She was transferred two days later to the Albany County jail, and she had to explain her prescriptions again, but still did not receive the proper doses for her congestive heart failure.
By July 26 of last year, 11 days after her arrest, Bamenga was getting sicker and she practically begged for help, writing to her jailers, “What is the disposition of my case, I would like to know?”
She never got an answer. The next day, she died.
Zikianda, 33, has sued both jails, echoing the findings of the immigration system and an agency consultant that the jails failed to provide proper medical care to Irene Bamenga. A New York state investigation later cleared the Albany jail, but Zikianda’s lawyers hope the lawsuit will reveal the truth.
“What are they doing to follow up to make sure their standards are being followed?” said Alex MacDonald, one of Zikianda’s attorneys, noting ICE still detains immigrants in both jails and never sanctioned the facilities. Zikianda wants “to ensure that justice is done and this does not happen again.”
The ceremony at the cemetery was Zikianda’s opportunity to finally ask for forgiveness of those in Moissy-Cramayel, a village of just over 16,000, where Bamenga attended school and the Notre Dame Church of the Assumption, where she and Zikianda married in 2005. He had failed to protect Bamenga.
Her mother, her stepfather, her siblings, and other family members still cannot understand how a French national trying to leave the United States could be jailed, placed in shackles, and allowed to die in a cell. They asked Zikianda for answers, but he had none. He could only offer that he had been unable to do more.
“They should have brought us back Irene,” her mother, Marie Madeleine Nelo, cried out in French in the living room of her home, where she hosted a reception after the ceremony.
Zikianda’s large family was there, too. And in a moment of silence, his uncle, Robert Zikianda, the patriarch of the family, stood to ask Bamenga’s family to release Zikianda of his duties as a husband, a tradition in their African culture.
Bamenga’s family, through her stepfather, somberly obliged.
“You’ve made the grave, you’ve done what you should have done, you go on with your life,” a family friend, Daphine Paris, said, roughly translating the solemn exchange.
And yet Zikianda, who would seem a bear of a man if he weren’t so broken, did not feel ready to go on without Irene, the passionate Celtics fan with the big smile who steered her husband onto a better course. She had encouraged the refugee from Congo to become an engineer. She would do something in social work, or business. They would have kids. All she needed to do was go home to France and wait out her application for a green card.
“It was the pursuit of an American dream,” Zikianda said.
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