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Between Iraq and a Hard Place 

Jassmin Al Salehy hasn't been a model citizen in America. In fact, he's not a citizen at all. Now, the U.S. would like to send the former freedom fighter back home to Iraq. Al Salehy says that's a death sentence.

Six years ago, this man -- the one in the purple Orleans Parish Prison sweatsuit -- was airlifted into America and welcomed as someone who had helped United Nations forces fight Saddam Hussein.

Here, said the paperwork for Jassmin Mohammed Al Salehy, was a freedom fighter who had helped to liberate prisoners in southern Iraq. Here was a man who had endured torture in jail and who had seen one brother injured and another killed. Here was someone who clearly could not return to his homeland, Iraq, because he had been sentenced to death there.

And so, in 1995, Al Salehy was flown in from a refugee camp in Saudi Arabia to New York City, where he was welcomed with open arms and then resettled, with the help of a church group, to Louisville, Ky.

But life in Louisville didn't agree with Al Salehy, who -- when he wasn't working at a series of part-time jobs -- seems to have devoted an inordinate amount of time to heavy drinking, mischief and criminal activity. That misbehavior brought him here today, on May 31, to New Orleans Immigration Court, where he's testifying on his own behalf in what are known as "removal proceedings." In other words, Al Salehy is trying to save himself from being deported.

Stan Weber, arguing the case for the Department of Justice, will assert that Al Salehy's history of law-breaking, deceit and general bad living makes him no longer deserving to be in the United States. Al Salehy's legal representative, Elise Cerniglia from Catholic Charities Immigration & Refugee Services, will counter that Al Salehy, despite his mistakes, should be allowed to stay, because he faces certain execution if he's sent back to Iraq.

Immigration Judge Agnelis Reese, after listening to nearly four hours of testimony, will decide whether the United States of America will give Al Salehy the boot -- all the way back to Basra, Iraq.

It's been 10 years since Jassmin Al Salehy last walked on the soil of his homeland and two years since he's been a free man in the United States.

Since October, Al Salehy has been held in Orleans Parish Prison, where many detainees for the Southern region of the Immigration & Naturalization Service (INS) are kept until their cases are heard in New Orleans.

Al Salehy speaks and writes only in Arabic, but he began sending English-language letters right away with the help of a fellow INS detainee named Aberahame Guenoune, a French Algerian. One letter, written last fall, reached Cerniglia, a 78-year-old immigration-advocacy legend who works out of Catholic Charities; she interviewed him and agreed to represent him. A series of letters also made their way to Gambit Weekly.

In the letters, which Guenoune wrote out in English from Al Salehy's Arabic dictation, the voice of the transcriber/translator is often detectable. Sometimes Guenoune inserts his own comments about an issue in parentheses and signs them "Aberahame." Other times, it seems clear that his ideas have been incorporated into the text -- one letter, for example, quotes Charles de Gaulle, a French hero probably better known among French Algerians than among Iraqi Muslims.

One 12-page letter, dated March 6, devotes large sections to political rants and to thoughts of Iraq. He could never return to his home country now, Al Salehy stresses, because of events surrounding the 1990-91 Gulf War: "When Saddam declare the war against Kuwait, I was in army in South Iraq -- Basra. I refuse to go to Kuwait; I find excuse that my son was sick; he need me to be near to him. They put [me] in jail [where] I find 300 other soldiers who refused to go."

According to interviews with Al Salehy -- one conducted by the United Nations and the other by Elise Cerniglia for Catholic Charities -- he and two of his brothers had all, at one point or another, fought in Saddam Hussein's army. One brother stopped fighting because he became disabled by explosives. Another brother refused, in the early 1980s, to fight against fellow Muslims in the war against Iran. As a result, he was executed in 1985 by Hussein's men. The family was not allowed to hold a funeral.

Jassmin Al Salehy worries about a fate similar to his brother's. In his conversations and letters, he frequently mentions his brother. And his brother's death clearly was in his mind during the time that he himself was imprisoned in Iraq in 1991. For two months, he says, he was beaten, subjected to late-night "cross-examinations," and forced to watch other prisoners be executed. Finally, he was sentenced to death by hanging. His sentence became moot in March of that year, when the jail where he was being held was liberated by freedom fighters who, he explains, were staging a rebellion in the Basra area:

"When U.S.A. Air Force start to bomb south, the civilians manifest against Saddam. They broke the jail, I was free, and I participate in this movement for 10 days [as they] put fire in police station and secret service office. After the [Iraqi] Army comes from Baghdad to stop the rebels, we try to fight them. But they use heavy materiel like tanks, so I decide to escape with other soldiers."

The group of freedom fighters, Al Salehy among them, were on the main road out of Basra headed toward Kuwait when they met up with U.N. forces, which brought them to a refugee camp in Saudi Arabia. Al Salehy says that he lived in that camp and a few other sites in Saudi Arabia until 1995, when he was brought to a nearby airport:

"I fly from Saudi Arabia, we change the plane 3 times. I don't know where, it's first time outside my country. I come in New York airport. When I come to Kentucky, I start to work 2 jobs -- in restaurant and store market -- to do the cleaning 'cause I don't speak English."

Al Salehy says that while he lived in Louisville, he used to go downtown "to drink some beer, to remember my family. I was alone; I was a sad man." At one point however, he wrote, he had been able to create a makeshift family:

"I rent a room in small house where an old woman lives. She has between 70 to 75 years, she was very sick and she cannot move. She was using an oxygen bottle to live and she don't have nobody to take care about her. But me I do. I clean her house, I do shopping for her. She care about me. She knows all my story. She treat me like her son. And she died on 01-25-98. Really I feel like I lost my mom again."

In February 1999, a year after his newfound surrogate mother passed away, Al Salehy found himself facing serious accusations -- he was charged in Louisville with the sexual assault of a 15-year-old boy. Al Salehy maintains his innocence in the matter. He says that he suspects that the charges were made by one of the teenage boys that he saw shoplift while he worked in a store. He says he believes that the charges were made in retribution -- but he can't be sure because he never saw his accuser. He says that all he knows is that he was arrested after work while waiting for a bus headed downtown:

"The police come to me and arrest me in front of a bus stop. Why? I don't know and after the translator come, he tell me I'm charged with sexual abuse. I was put in jail for 20 months. I don't have money to have a lawyer. And one day one man, I think the prosecutor, comes to me and [tells me] say guilty and you go home free. I say okay.

"After that, INS comes to me and arrests me."

The man who had come to Al Salehy was actually his defense attorney, Brian Edwards. The Jefferson County public defenders' office was overloaded with cases at the time, which is why Al Salehy had sat in custody for 20 months before having his day in court. The county hired Edwards on a contract basis.

Edwards remembers Al Salehy's case very well. He had gotten the prosecutor to bargain down to a misdemeanor in Al Salehy's case, which would carry a maximum sentence of 12 months -- meaning that Al Salehy could be released for time already served. It was a good deal, and yet, Edwards says, he was still concerned that a guilty plea from Al Salehy could mean deportation, due to provisions contained in 1996 federal legislation, the Illegal Immigration Reform and Immigrant Responsibility Act.

"My concern," Edwards says, "was INS, what INS would do. I contacted them on his behalf. What I essentially wanted to know was, if he took a deal with the misdemeanor, would that subject him to deportation. In speaking with them, they indicated that a lot of it would be based upon what status he had in this country." Edwards says that he told INS that Al Salehy was a political refugee. "They represented to me that with that status and with a misdemeanor, the likelihood was that he would not be subject to deportation, but that there was no guarantee. That's the best that I could get from them."

Ben Johnson, spokesperson for the American Immigration Lawyers Association and an immigration lawyer himself, says that that's one of the big problems with immigration law. "It oftentimes has no relation to state law or to decisions by judges and juries in the states. An offense can be a misdemeanor in a certain state, a judge can decide to impose no jail time, they may even expunge the charge years later. But in all those cases, the INS can use those facts to deport somebody."

In Jassmin Al Salehy's May 31 deportation proceedings, the most startling information is found in Exhibit 6.

It comes a few hours into the testimony, after Elise Cerniglia has rested Al Salehy's case for the defense. Through a court-appointed interpreter, she had walked Al Salehy through his fears for his life in Iraq and discussed with him his behavior in Kentucky. He talked about his 1999 sexual assault and admitted that he also had one earlier arrest, which involved excessive drinking.

Things in the courtroom had, at times, gotten fairly tangled. In fact, Al Salehy's replies often did not address the questions that Cerniglia had asked. Since his replies were given through the court interpreter, it was difficult to tell whether Al Salehy was intellectually slow, morally elusive, unable to understand the interpreter, or some combination of all three.

Assistant District Counsel Stan Weber (whose office prosecutes cases for the INS) begins his questioning, and he also encounters a few clunky moments with Al Salehy. When he jettisons a few questions altogether, it becomes clear that he has more important things up his sleeve.

Like Exhibit 6. It's a printout from Jefferson County, Ky. He walks over to the table across the aisle, hands a Xerox to Cerniglia, and then walks to the bench to hand one to Judge Reese, who enters it into the record.

Weber gestures with the printout in his hand. "I have some information here that indicates that you've been arrested 18 times in Kentucky," he says. Weber puts his finger on the paper at the earliest arrest: "August 1995 -- you were charged with criminal trespass and intoxication."

Al Salehy answers through his interpreter. "I was just drunk."

Weber follows up. "Were you arrested?"

"I was drunk," Al Salehy replies. "They keep you for two or three days."

Weber points his finger at the paper, moving it up to the next offense. "Arrested September 27, 1995, for alcoholic intoxication and released on the 28th."

Al Salehy tries to explain. "The alcoholic stuff -- it was beer and wine."

The conversation continues this way as Weber runs through the entire list. It's filled with charges for alcoholic intoxication, sometimes in combination with disorderly conduct (staggering in front of a bus stop, yelling "no problem"), breaking into cars, attempted shoplifting (trying to walk out with a six-pack of Ice House beer), robbery (going through a sleeping man's pockets for a cigarette), and terroristic threatening (telling arresting officers that he had ties to Islamic jihad factions).

It's pretty damning stuff. In his closing arguments, Weber summarizes: "I don't think the respondent has been forthcoming in any way. When he was asked to explain, he didn't. It was always somebody else's fault." Weber says that Al Salehy's crimes "escalate from 1995 to the most serious ... a very serious offense." He winds up with a serious blow. "I would ask the court to deny all forms of relief in this matter."

Elise Cerniglia argues that most of Al Salehy's offenses are a result of alcoholism, "a medical condition that is no reflection on a person's character." She holds out hope that Al Salehy will be allowed to get his U.S. residency, be free, and go through Alcoholics Anonymous and be a whole person. "Clearly," she warns, "if he goes back to Iraq, he'll be killed."

Judge Reese, after deliberation in her chambers, comes out and issues, in English, a 15-minute decision that concurs with Weber in almost every way. She rattles off immigration-law intricacies and cites Al Salehy's Kentucky arrest record and inconsistent testimony as factors that weighed heavily in her decision. Then she looks at the interpreter and indicates that he convey this next message to Jassmin Al Salehy.

"Mr. Al Salehy," says the judge, "I have denied your application for relief and ordered your removal to Iraq. Your attorney has reserved the appeal of this decision, so the decision is not final. You'll need to stay in touch with your representative."

Jassmin Al Salehy is not headed for Iraq quite yet. Al Salehy's representative -- Elise Cerniglia -- is gunning for a successful appeal.

The ruling had been made just before 5 p.m. on Thursday. Monday morning finds Cerniglia full of vigor about her continued work on behalf of Al Salehy. She's already received a stack of paperwork about the United Nations Convention Against Torture and is making notes on key portions. Earlier that morning, she'd made a stop at Immigration Court and had submitted a formal written request for a transcript of the decision.

Cerniglia can, off the top of her head, name the research she needs to do for Al Salehy's appeal. For instance, there were a few times when she wasn't particularly confident about the interpretation. Even the judge, she noted, piped in once and questioned whether the word "desertion" meant the same thing in Arabic as it did in English.

Cerniglia wonders whether there was a disparity in dialect. "I know that in many countries there are differences from north to south," she says. For instance, explains Cerniglia, who's fluent in Spanish, "guaga means bus in Cuba, but it means cimron -- truck -- in Mexico." Ninety percent of her cases are Spanish speakers, she says, but she typically brings along her own interpreter just to double-check the court-appointed interpreter. On May 31, however, the Arabic interpreter she uses was out of the country and so Cerniglia has no way of substantiating her suspicions.

Cerniglia reaches into her Al Salehy file and pulls out a 19-page U.S. State Department report on Iraq dated February 2001. It details hundreds of incidents of human-rights violations. The report, which was entered by Cerniglia in Al Salehy's case, documents the abuse likely faced by a former freedom fighter and political refugee being returned to the country. Among routine punishment for Iraqi prisoners is branding, electric shock administered to the genitals and other areas, the pulling out of fingernails, burning with hot irons and blow-torches, and the dripping of acid on the skin. Mere association with opposition is grounds for execution.

Which raises another question for Cerniglia: can Al Salehy actually be sent back to Iraq, not only given the political climate in Iraq, but also given the state of United States-Iraq relations?

Stan Weber says that he can't comment on that or any other details of the case. Paige Rockett, local INS spokesperson, says that there are some countries that don't accept deportees from the United States, but those are what she calls "the big four": Cuba, Cambodia, Laos and Vietnam. "So," Rockett says, "it's not to be assumed that we could not return him to Iraq."

Cerniglia says that Al Salehy assured her that Iraq would welcome him back so that they could kill him. "I don't have any doubt that he'd be harmed," she says, making more notes in his already-bulky file.

She picks up the telephone to check on another piece of information for his appeal. "He's not going back to Iraq, that I guarantee you," she says emphatically as she dials a number on her telephone keypad. "He'll be killed simply because he's a refugee. We're not supposed to put someone in harm's way like that."

An appeal date has not yet been scheduled.

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