ABROAD AT HOME

IS THIS AMERICA?

BOSTON -- You are awakened by Immigration and Naturalization Service agents
knocking at your door. They tell you they are taking you into detention --
prison -- to be held for deportation. You say: "But I am an American
citizen. I can't be deported."

For the next three years you keep making that claim of citizenship. You
want it to be decided by a Federal judge, but they make you go through an
extended administrative process. You have no right to a Government-provided
lawyer if you cannot afford your own. And all this time you remain in prison.

A fanciful scenario? Not at all. That is exactly what I.N.S. lawyers say
should happen to someone who is taken in for deportation and claims to be a
U.S. citizen. They take that position in a case now going on in Alaska.

Hawa Said, 21, was born in Yemen. Her parents were divorced, and her mother
left. When she was 1 year old, her father emigrated with her to the United
States -- to Anchorage, where he owns a watch-repair shop. In 1996 he
became a naturalized U.S. citizen. Under U.S. law, because she was under 18
she automatically became a citizen, too.

Last year Ms. Said was convicted in the Alaska courts of a cocaine offense.
She was given a three-year sentence, all but 30 days suspended. This past
May she reported to jail to serve the time. Instead of being released at
the end, she was taken into custody by the I.N.S. as an "aggravated felon."
The 1996 immigration law requires detention and deportation of such
convicted aliens. But Ms. Said said she was a citizen.

An Anchorage lawyer, Margaret D. Stock, took on the case. She sought the
classic remedy for someone wrongly imprisoned: a writ of habeas corpus.

Federal District Judge H. Russel Holland found last month that Ms. Said had
"made out a prima facie case" that she was indeed a citizen. But then, at
the urging of the I.N.S., he changed his mind and said she would have to
make that claim in an administrative deportation proceeding.

Ms. Said has now appeared before an immigration judge. If he decides
against her, she can go to the Board of Immigration Appeals. The next move
is to the U.S. Court of Appeals. But if it found facts in dispute, which it
likely would, it would have to send the case down to a U.S. District Court
for fact-finding. Then it would go back up to the Court of Appeals. While
all that went on -- three years is a minimum, probably understated -- Ms.
Said would remain in prison.

That tormenting process flies in the face of a notable Supreme Court
decision, the 1922 case of Ng Fung Ho v. White. A person of Chinese origin,
held for deportation, claimed to be a U.S. citizen. The Government said the
question should be decided administratively. The Court held that it must be
a decision for the courts.

Justice Louis D. Brandeis, writing for a unanimous Court, said the
Constitution entitled the claimant to a judicial decision, on habeas
corpus, of his citizenship. To deport someone who may be a citizen, he
said, may deprive him "of all that makes life worth living."

Could Congress, in the 1996 immigration law, sweep aside that
constitutional decision? Did it really mean to do so?

The case raises troubling issues of Government power. But there are also
human issues.

Ms. Said is seven months pregnant. After taking her into custody, the
I.N.S. sent her to a facility in San Diego, 2,427 miles away from her home
and family; it brought her back only when ordered to by Judge Holland. She
is held in a state prison with Alaskan criminals. She knows no one in Yemen
and speaks no Arabic.

The case of Hawa Said is an extreme example, but not the only one, of what
must be an I.N.S. mind-set. I always ask myself why immigration agents --
and I.N.S. lawyers -- feel they must grind their targets down so
inflexibly, so mercilessly. The new Immigration Act, harsh as it is, does
not require that level of inhumanity.

The Commissioner of Immigration, Doris Meissner, is a humane person. So is
her boss, Attorney General Janet Reno. But somehow they seem unwilling, or
unable, to infuse the immigration service with the quality of mercy, not to
mention respect for the Constitution.