On Jasmeen’s second visit to the Elizabeth Detention Center she asked an immigration officer if children were allowed. “He said yes, if they were accompanied by a guardian,” Jasmeen said. From then on, she began taking the kids to visit their father on her one day off from her job at The Marriott Marquis Hotel where she works as a housekeeper.
There were indignities big and small. The security scans, the time limits. On Father’s Day, an officer stopped both daughters who made special cards for their father in the detention facility. Sanjana, the youngest daughter recalled sadly: “The officer said we couldn’t give him the card, because we couldn’t take anything inside.”
Meanwhile, after three months, Gell had made no progress. Though she had submitted two motions to the immigration judge to reopen Hussain’s file, both motions had been denied.
Along with the motions, Gell submitted references from the community but chose not to submit documents on changed country conditions in Bangladesh and expert opinion, which Sabiha had specifically requested. Sabiha gave up on Gell after that. Hussain’s status remained in limbo.
Hussain says he missed his family terribly, but he was not mistreated during his time in detention. In the morning he prayed faj’r (Islamic Morning Prayer). There was no sunshine or fresh air inside, but during the day, he was allowed to spend three hours in a wire-fenced outdoor courtyard exposed to sunlight and air. Some of the inmates played sports. Hussain used that time to walk. “I was bored mostly,” he said. But every day, the fear of deportation was real.
Hussain made frequent trips to the health services for high blood pressure, fever and headaches. He also suffered a severe toothache and was taken to the clinic to get it removed. “Every time the officials took me in, my cell mates thought I was being deported, I’d always return though,” he chuckled.
When Hussain wasn’t praying, or taking walks outside he spent the long days sitting in one place with prayer beads in hand. He recited Islamic dua’s (invocations) hundreds of times a day. The nights were the worst. The mental agony of not being with his family kept him awake.
But on June 17, 2011, three months into Hussain’s detention, John Morton, the director of ICE, released a memorandum saying the agency planned to review 300,000 deportation cases under “prosecutorial discretion,” which meant ICE would focus on cases that were deemed “most serious.”
The memo also stated that prosecutors would hold back on deporting individuals who did not pose a national security threat to society, who had close family ties to US citizens, and who had no criminal history. Hussain matched all three categories within the memo. The only immigration laws that he had violated were staying beyond the expiration of his visa and working illegally in Queens.
Then, a month later in July 2011, Sabiha was advised by her relatives to see Kerry Bretz, a former INS trial attorney who applied for “deferred action” on Hussain’s case. A deferred action is a form of “prosecutorial discretion,” and it’s one way an immigrant in danger of deportation can halt the process. If approved, the plaintiff can remain temporarily in the US. However, a compelling case has to be presented.
Prosecutorial discretion has been a developing area of immigration law since the release of the June 17, 2011 memo on the planned review of the 300,000 deportation cases. Today, the term has been applied broadly to a wide-ranging set of cases at every phase of immigration enforcement in the United States.
According to Martindale Hubbell, a respected source for biographical information on the legal community, Bretz is Av-Rated, which is the highest review rating that attorneys can attain. Sabiha said the three months she received help from Bretz produced very little hope on her husband’s release.
Bretz sent a letter to the Field Office Director at the Elizabeth Detention Center showing Hussain’s community ties, clean criminal history, and dependent children who were citizens of the US. He waited three months, but received no answer on the appeal.
Sabiha was fed up. “Even the poor results cost money,” Sabiha said. She had received help from her family to pay Bretz a total of $6,500 for his services. Though Bretz’s efforts in applying for prosecutorial discretion provided little results at the time, it was an avenue that worked to Hussain’s advantage later on.
By now, Hussain was in his 8th month of detention and Sabiha had gone through thousands of dollars in legal fees. Her daughters had been held back from school for mental and health problems, and she was in the depths of depression. In November 2011 Sabiha turned to a community leader in Jackson Heights for help.
Mohammad Rashid, a Bangladeshi-American, had a reputation as a man who could make things move. “Nothing was happening. None of the lawyers brought any results. My husband was still detained,” Sabiha said. “Rashid arrived like an angel into our lives.” Rashid immediately contacted District 26 Councilman Jimmy Van Bramer, and New York Senator Kristen Gillibrand.
Both Van Bramer and Gillibrand along with other community activists agreed to write letters to immigration officials to release Hussain on humanitarian grounds. According to Alison Siskin, a specialist in immigration policy for the Congressional Research Service, release under humanitarian grounds (also known as parole) can be applied to aliens with serious medical conditions, pregnant women, juvenile aliens, and “aliens whose continued detention is not in the public interest.”
Rashid also introduced Sabiha to Naresh Gehi, yet another immigration attorney in Jackson Heights. By now it seemed that Hussain’s deportation was all but inevitable. But instead of asking for money, Gehi sprang into action. On November 25, 2011, he filed a motion with the BIA to reopen Hussain’s case. He says he didn’t care whether the motion was denied, but he knew that a judge could release Hussain while the motion was pending.
A week later, Gehi sent a letter to the federal courts. “I said it is a gross injustice that we are keeping a person in detention for more than six months. He referenced the Supreme Court case, Zadvydas v Davis, which concluded that the government needed to have a clear reason for detaining an immigrant for more than six months. He also filed a writ of habeus corpus petition, to the Attorney General.
Then Rashid and Gehi took the case public. They organised a press conference on December 4, on the second floor of Kabab King, a South Asian restaurant in Jackson Heights, to appeal for Hussain’s immediate release.
Sabiha, and her two daughters Sabreena and Sanjaana sat silently on handcrafted wooden chairs from Pakistan, as Rashid called in reporters from the Queens Tribune, the NY Daily News, NY 1 News, and other South Asian outlets to ask questions about their case. Behind them were bright red curtains with three posters on top that read in all caps: “I AM A US CITIZEN AND I LOVE MY DAD.”
For the first time Sanjana and Sabreena were able to express their points of view to a wider audience. It was an uncomfortable experience for the girls, but an affirming one. “Before, it was just my family trying to figure things out. But now our voices were heard for the first time to people who didn’t even know us,” Sabreena said.
On December 7, Gehi sent a 246 application for the stay of removal to BIA, another form of prosecutorial discretion. A stay of removal is an alternative way to postpone a removal. If the “stay” were approved, Hussain would be granted a six-month stay in the US.
“I had discussions with the DHS asking them to consider the hardship on US children, who are desperately suffering,” Gehi said. “The officers said they understood the issue of children,” he said. Gehi took the officers’ notice as a good sign. The culmination of media attention, and the involvement of elected officials worked to Gehi’s benefit with the case.
Two weeks later, on December 22, Gehi received a phone call at his office from the courts that Hussain’s temporary “stay” had been approved. He called Sabiha. It was 5pm and she was having dinner with her daughters and Jasmeen. Gehi told her that her husband was to be released in just a few hours.
“I couldn’t believe it, it felt like a dream,” Sabiha remembered. At 6pm, inside the Elizabeth Detention Center, Taimur received the same information but from an immigration officer. Hussain said he fell to the floor in tears. “The other cellmates cried with me,” he said.
After arriving at the detention center, Sabiha and her two daughters ran into confusion. “We thought he was going to be released at his detention center, but we had to go to a jail next door. The officers directed us to a hallway.” There, in a dark room stood a familiar silhouette.
His daughters instantly recognised him. They ran up to him, hugged, and cried. For Hussain, being released felt like being born again. “I felt like I was in this world for the first time,” he said.
Hussain was released in time for the New Year but there were still fees to pay. The family owed Gehi a $4,000 retainer fee just a week after his discharge. “Rashid, like an angel helped me pay the mandatory fees to Gehi,” Sabiha said.
Rashid contacted merchants and mosques in Jackson Heights, requesting donations. He even asked his children to take money out of their savings. He managed to collect enough to pay the $4,000 retainer fee, but the Hussains still owe an additional $6,000 to Gehi.
Hussain said he was stunned by the amount of money his family spent on his case. “This money that went into my release could have been used on my daughter’s education,” he recalled. “Instead we are in debt. We owe all this money to family, friends, and lawyers,” he said.
With the help of Gehi, Hussain applied for and received notification of a six-month work authorisation status. Until he receives this official permit, he’s working at the Taj Mahal restaurant off the books. “The processing takes time,” Hussain said.
Hussain was advised by Gehi to report back to ICE on June 5, 2012, to request another temporary extension of stay, which continues the cycle of uncertainty in the place he calls home. For his family, it just extends the anxiety.
“Sometimes when I pass by my dad’s work,” said his middle daughter Sabreena, “I go in. I just never know when they’ll take him again.”
