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. Last Updated: 07/27/2016

INS Can Turn Alien's Life Into Kafka Novel

The classic story of a man destroyed by faceless accusers, Franz Kafka's "The Trial,'' begins as follows: "Someone must have slandered Joseph K., because one morning, without his having done anything wrong, he was arrested.''

Its a sensation familiar to many who have gone up against the U.S Immigration and Naturalization Service. Over the last several years, INS has acted to expel about two dozen aliens from the United States on the basis of evidence that they were not allowed to see. Many of them were, and are, imprisoned while trying to fight the phantom of secret evidence.

The danger of letting the U.S. government use secret evidence has now been dramatically illustrated in one of the immigration cases, that of Hany Kiaraldeen. He is a 31-year-old Palestinian who has lived in the United States since 1990 and is married to a U.S. citizen.

Kiaraldeen was detained by the INS in March 1998 and has been in a New Jersey jail ever since. The INS accused him of having connections to terrorists. But it would not tell him or his lawyers the basis for that charge.

The INS presented classified material in secret to an immigration judge, Daniel Meisner.

Meisner, having read the secret material, concluded that an evaluation of it "by a person of ordinary prudence and caution cannot sustain a finding that [Kiaraldeen] has engaged in terrorist activity.'' The INS appealed to the Board of Immigration Appeals twice - and lost.

Kiaraldeen's lawyers had gone to a federal court to seek his release on a writ of habeas corpus. Judge William Walls of New Jersey said it was unconstitutional to use secret evidence against him - to make him battle "anonymous slurs of unseen and unsworn informers.''

Judges often defer to government claims of a threat to national security. Yet eight judges have rejected that claim in the Kiaraldeen case. Even the FBI closed that investigation.

But the immigration service did not give up. It won legal stays that at least temporarily prevented Kiaraldeen's release from prison. It indicated that it would do anything it could to keep him there while it sought to overturn the decisions.


INS officials assured me that it wasn't just the momentum of lawyers who don't like to lose; they really believed Kiaraldeen was a threat. But at some point they should follow Oliver Cromwell's advice and consider the possibility that they are mistaken.

In another case, Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia compared an accused alien to Joseph K. in "The Trial.'' He had to prove he wasn't a terrorist without knowing the evidence against him, Ginsburg said: "It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden.''

Anthony Lewis is a columnist with The New York Times.