While snow pelted Denver, aspiring Russian bards huddled
recently in a borrowed conference room, where visiting folksinger
Vladimir Berezhkov serenaded them with tales of life in the shadow
of the Kremlin.
Similarly, 6-year-old Maria Valershteyn hunkered over
Russian language texts this past year to supplement her Denver
Public Schools studies.
And every Saturday morning, Russian-speaking parents hustle
children to the Glendale Community Center for lessons in
“We want to keep our culture,” says Lyuda Zatureuskaya, who
supervises the lessons. “We are from a rich culture.”
That preoccupation eclipses today’s election in Russia for
many of the estimated 25,000 Russian-speaking people in Denver.
They form one of the fastest-growing and, by many accounts, most
prosperous communities of recent immigrants from the former Soviet
Union. The United States has admitted more than 450,000 since
Their accents suggest they might well be engrossed in the
fate of President Vladimir Putin as voting begins across Russia
this morning. Yet Putin – a hard-liner who took charge when Boris
Yeltsin resigned New Year’s Eve – draws lukewarm attention at best.
“For me, American politics is a lot more important,” said
Yuliya Fridman, 24, a US West employee whose family moved from
Minsk in 1991. “This is where I live. This is where I plan to have
my family. I do care about what’s going on in Russia. But I’m
planning to make my life here.”
Rather, Russian-speaking immigrants focus on establishing
cultural institutions in Denver.
They’ve set up two Russian schools that teach children
traditions from music to chess.
An association of 11 clubs draws hundreds of adults for
discussions, concerts, fitness activities and poetry.
Grocery stores such as Dmitri Gershengorin’s European Mart on
Leetsdale Drive supply Russian sausages, pastries, smoked fish,
salads – and Russian videos for rent.
The Denver-based Moscow String Quartet plays classical music
that many immigrants love.
A Russian Orthodox Church at South Colorado Boulevard and
East Iliff Avenue is one of several where Russian-speaking
Their cultivation of Russian-ness while sinking roots here
stands out at a time when other immigrants use the United States
simply as a money-making center for building a better life
Russian poetry in Denver trumps politics in Russia in the
view of Moscow-born Will Kaufman, 35, a member of the Russian Bard
club here and a successful computer programmer. “I am very cynical
about Russia, very cynical about this war in Chechnya.” Kaufman
called today’s elections “a travesty” masking control of Russia by
Many Russians here won’t vote for lack of interest, said
Leonid Reznikov, a researcher at the University of Colorado Health
Sciences Center who also edits the Russian newspaper Horizon.
Reznikov presented election information in Horizon. He also
advised Russian consular officials who plan to supervise absentee
voting today at the Glendale Public Library. About 200 Russian
immigrants with passports voted in Russia’s parliamentary election
“I believe some people may come to support Grigory Yavlinsky
(one of 11 candidates challenging Putin),” Reznikov said. “But
there is no real choice. Putin will win anyway. Hopefully he will
not bring a real dictatorship to Russia. It may be a soft
dictatorship. We already have some signs that censorship is
starting in the Russian press.”
In Denver, the Russian-speaking community emerged in the late
1970s with the arrival of a few Jewish dissidents. It took off
around 1991 as the Soviet Union collapsed.
Nationwide, at least 454,628 immigrants have arrived from
former Soviet countries since 1990, according to federal
statistics. Of those, about 372,335 entered as refugees. The
United States gives special priority to Jews and evangelical
Christians in ex-Soviet countries who claim they face persecution.
Thousands more migrated to the United States for economic
opportunities or as spouses of previous immigrants. And the
454,628 figure doesn’t include a growing number of
Russian-speaking temporary workers.
The emphasis on sinking roots in America, rather than
investing earnings back home, reflects that “things have not gone
as smoothly as they might have in the countries they came from,”
said Terry Rusch, director of refugee admissions for the U.S.
Department of State. “Overall, it’s been a very positive
experience. They’ve come, they’ve enriched this country.”
Economically, Russian speakers in Denver say they are getting
ahead. The elderly rely heavily on public support. But working-age
immigrants find their solid education in Russia pays off here.
More than 44 businesses run by Russian-speaking immigrants
advertise in the Denver-based newspapers Horizon and Vestnik.
Businesses here include a crew of carpenters, Vartan
Tonoian’s jazz club “Vartan’s” in Downtown Denver, the Astoria
restaurant serving borscht, chicken Kiev, plove (a rice and meat
dish from central Asia) and more, a pharmacy in Cherry Creek
North, two Russian bookstores, and Little Russian Cafes.
Russian speakers in Denver often say they are lonely. They
say they need to cultivate a distinct identity in America.
Parents lament that their children, who tend to hang out with
other Russian-speaking children, converse predominantly in
“People miss the closeness they had in Russia – closeness
with friends sitting at the kitchen table drinking vodka talking
about anything at all,” Kaufman said while handling a computer job
last week. “Here their relations with Americans at work and with
neighbors are very superficial. “How’s work? How’s the weather?’
Their soul yearns for some sort of really close contact.”
The main challenge now is just finding some place to meet.
Community leaders talk of raising money for a Russian Cultural
Until now, Russian speakers have borrowed rooms for club
gatherings. The Glendale Public Library, with Russian-speaking
staffers, serves as an unofficial center.
Occasionally, Jewish Community Center auditoriums are
“We need it,” school director Zatureuskaya said of the
proposed cultural center. Enrollment at her Science, Art and Sport
Center for Children has doubled over the past three years to 150
students. They range from 6-year-old girls in ballet attire to a
sheepish 15-year-old boy who wasn’t inclined to give his name
after practicing for a recent dance performance. “Half of it, my
parents make me come,” he said. “Half of it is fun.”
Former actress Inna Valershteyn is passionate about ensuring
that her 6-year-old daughter, Maria, studies Russian in addition
to Denver Public Schools classes. In the family Volvo, she drives
Maria to private classes with Olga Sventuh at a rented facility.
“I don’t want to lose this language,” Valershteyn said. “If a
child has more than one language, it makes life richer.”
Political freedom here enables activity that once proved
risky in Russia. For example, free-thinking bards raised
suspicions during Soviet times. The Russian bard tradition
involves composing poems, then singing them while playing guitar –
a bit like Bob Dylan. The bards gather in forests to do this.
Last summer, club leaders booked space for 40 at a campground west
of Denver. More than 70 aspiring bards arrived, setting up tents
beneath pine trees, tuning guitars, sipping wine. They sang out
their poetry until dawn. Coordinating all these cultural
gatherings on top of fast-paced U.S. work schedules is a difficult
job. But the Russian-speaking community found a solution: Mikhail
Timashpolsky, 76, president of the Denver Russian Community
Cultural Center, who once ran government cultural “palaces” in
Russia. A pensioner with time to make phone calls, Timashpolsky
devotes most of his waking hours to keeping his countrymen together.
“In the former Soviet Union, people were going for community,
rather than individuality,” he said. “That’s why, when
Russian-speaking people come here, they still have this desire to
be in a community. Many feel they have no outlet for their
creativity. These people, they want to preserve their culture and
Webb steps in to broker deal in fatal no-knock raid
Denver Mayor Wellington Webb brokered a $400,000 settlement
Thursday with the family of Ismael Mena, the Mexican migrant
worker Denver police killed in a botched no-knock drug raid last
The deal sets a monetary record for Denver in wrongful-death
cases involving police. City attorneys say the previous high
payment was $260,000.
It begins to resolve a major fiasco. The fatal raid on Sept.
29 prompted Mexican government officials to raise concerns in
Washington. The FBI launched an investigation into possible
criminal civil-rights violations.
Denver’s mistake – police hit the wrong house – was a factor
in Police Chief Tom Sanchez’s resignation. And it sparked scrutiny
of how hundreds of no-knock search warrants are issued.
A key legal factor in the settlement was Mena’s immigration
status. He had entered the United States without proper documents.
To work, he showed employers fake papers, family attorney Robert
Mediator Jim Carrigan “kept telling us the ultimate value
of this case was between $200,000 and $500,000,” Maes said. A
former federal judge, Carrigan “reminded us several times that he
was really a potential felon by illegally living in the country,”
Lead city attorney Ted Halaby confirmed that this factor “was
The $400,000 falls far short of the $5.5 million Maes
initially sought for Mena’s family in Mexico. Denver initially
offered $150,000. A migrant worker for much of his life,
45-year-old Mena was working here to support his wife and seven of
their children, ages 8 to 20, on his farm near San Julian in the
central Mexican state of Jalisco. Two sons work in Los Angeles.
Mena’s widow, Maria del Carmen, was forced to sell his
animals. She traveled to Denver to attend negotiations last week
and, according to Maes, grasped the implications of a protracted
court battle. Then she returned to Jalisco. Mena’s eldest son,
Heriberto, 21, a restaurant worker, stayed in Denver to represent
“I don’t know if that’s good,” Heriberto said of the
$400,000, “but this is the best for my family.”
Mexico’s representative in Denver, Consul Carlos Barros,
immediately praised the deal. The money “is going to be good
enough to guarantee that Mena’s children get an education, which
is a main concern,” Barros said. “I’m very happy the whole case is
solved. It was always a deep concern to have this family with no
means of survival. … Now we can do some more productive work.”
Webb said: “What we tried to do was come up with what was
fair. … I frankly don’t think you can put a price on a person’s
Thursday afternoon, Webb intervened when both sides were
deadlocked in arbitration in a Lower Downtown conference room.
Attorneys agreed only on calling out for Quizno’s at lunch.
At 2 p.m., Maes said, the city was offering $275,000 while he
was asking for $600,000.
That’s when Webb went to the room. “I thought I might be able
to get it solved,” Webb said later.
Webb listened for the better part of an hour, Halaby said.
Then he gave the go-ahead for a compromise offer of $400,000.
Today, Mena family attorneys are structuring an annuity that
will pay the family $1,700 a month for 20 years, plus $100,000 up
front for a house in the town of San Julian. Maes said he and his
legal team will take 25 percent of the settlement money.
The move to San Julian will improve the lives of Mena’s
children, he said. There’s a school there, and running water.
Mena’s two oldest sons plan to keep working in the United
Mena preferred life on the farm, which he struggled to
maintain from afar. The settlement, Mexican Consul Barros
suggested, amounts to “a transformation of his dream.”
Heriberto Mena said Thursday that he’s considering moving
from Los Angeles to Denver if possible. “I like it a lot here.
Good people here.”
Legal experts said the settlement was low compared with what
other cities have paid in wrongful-death suits. Denver “maintains
its reputation for never capitulating on these kinds of cases,”
lawyer Craig Silverman concluded.
But the city’s lawyers “should be commended for
stepping up to the plate when there’s a reason to do it,” lawyer
Scott Robinson added. Happy over settlement
Denver Police Union President Kirk Miller declined to comment
on the settlement except to say police need better training.
And lawyer David Bruno, representing Denver police officer
Joseph Bini, who faces perjury charges in the no-knock raid, said
he’s happy the city and family have settled. “Any time you can
settle a case you’re better off.”
Yet the settlement left sadness and rage. “I want to cry a
little,” Maes confided after a city hall news conference. “I wish
I could have got them $2 million.”
Mena’s illegal immigration didn’t keep him from working for
dozens of U.S. employers for years – earning more than $10,000 in
1998, Maes pointed out. He worked most recently at the Coca-Cola
bottling plant in north Denver.
Beyond Mena’s death, the tragedy exposed “an unspoken”
agreement between Mexico and the United States that is wrong, Maes
“He had a green card, and it was a false green card,” he said.
“We let ’em in so long as they don’t create waves. We’re not going
to enforce on the employers. I know who pays the price: It’s the
people who come north looking for an opportunity. And their
families pay a price, too. … We’re not only complicit, we are
hypocritical. Our corporate culture takes advantage of this labor
Webb declined to comment on that broader situation.
He said the settlement concerned only this case.
“This doesn’t mean if there are future cases we would do them
the same way,” Webb said.
Denver Post staff writers Peter G. Chronis and Mike McPhee
contributed to this report.
MAJOR POLICE SETTLEMENTS IN DENVER
December 1999 – Antonio Reyes-Rojas received a $30,000
settlement after he was shot by Denver police officer Kenneth
November 1998 – Relatives of Jeffery Truax accepted a $250,000
settlement with the Denver Police Department for the March 1996
shooting death of Truax outside a Denver nightclub by Chavez and
officer Andrew Clarry. A jury had awarded the Truax family $500,000.
June 1998 – Mauricea Gant received an undisclosed settlement for
the September 1992 killing of her father, Steven Gant, by Denver
police officer Michael Blake.
May 1998 – A jury awarded the family of teenager William “Bill’
Abeyta $400,000. Abeyta was shot to death in January 1995 as he
allegedly drove a stolen Jeep at police. The Denver City
Attorney’s Office, however, says a payment that high was never made.
October 1993 – A federal jury awarded $330,000 to the family of
Leonard Zuchel for the 1985 fatal shooting of Zuchel by Denver
police officer Frederick Spinharney.
ELSEWHERE IN THE STATE
April 1996 – Juan Pablo Rocha-Gallegos was awarded a $225,000
settlement against the city of Greeley after being shot seven
times by a police officer during a massive drug raid in Eaton in
July 1988 – Derek Scott Powell, 25, was killed by a Boulder
County sheriff’s deputy after Powell allegedly pointed a rifle at
the officer. A federal jury awarded $1 million to Powell’s family.
A federal judge threw out the verdict, but the family settled with
the county and the deputy.
Talks start today in no-knock death
SAN FELIPE JESUS DE LAS CASAS BLANCAS, Mexico – Ismael Mena’s three-room adobe house gives shelter from hot wind.
Nine children once chattered by flowers in the courtyard
where, today, their 80-year-old grandmother putters alone.
An adjoining stable Mena built for his beloved red horse sits
empty; the saddle gathers dust. His cornfield fights weeds.
The 14-acre farm here was Mena’s dream.
To keep it alive – traditional lifestyles are dwindling as
Mexico goes modern – Mena had to toil in the United States for
much of his life. Most recently, he worked the night shift for
Coca-Cola in a graffiti-splotched north Denver neighborhood where
drug deals are done. He fixed wooden pallets. He lifted hundreds
of red plastic crates, each packed with eight 2-liter plastic
bottles of Coke, and hoisted them into red trucks.
The money he sent home sustained his wife and seven children
on the farm. Two older sons had moved to work in Los Angeles.
Now Mena’s dead. Denver police shot the 45-year-old migrant
mistakenly in a botched no-knock drug raid last fall; they went to
the wrong house. Once a policeman in Mexico, Mena had been
sleeping off his night shift.
Five months later, Mena’s family is torn. Without him
working, Maria del Carmen saw fit to sell his 10 cows, one mule
and the horse. She has moved the children in with her parents 5
miles closer to the nearby town of San Julian and the doctor her
diabetic son needs.
“We are wondering how we will live,” she said.
Today, negotiations for wrongful-death compensation begin in
Denver, where Maria, eldest son Heriberto, and attorney Robert
Maes, referred by the Mexican government, square off against
Denver’s legal team.
The city’s offer – $150,000 – falls short of the $5.5 million
Maes seeks for the family. Former federal Judge James Carrigan is
to guide arbitration today.
The only reason Maria didn’t sell her husband’s land, too, is
that Mena’s mother, Dona Julia, absolutely refuses to leave it.
While water trickled from a tap into buckets, Julia conjured
images of Ismael talking to his cows as he milked them.
“Why did they have to kill my son? I loved him so,” she said,
drawing a black shawl across her wrinkled face. If she left the
farm, Dona Julia said, “everything would be over. It would all
fall down. That’s why I don’t want to go.”
Meantime, Ismael’s 20-year-old daughter, Rosalilia, is in
charge of the children surviving here on beans and tortillas,
cooked over a wood fire in an adobe house with no bathroom. Ismael
Jr., 17, injects himself each morning with insulin. Rosalilia’s
twin, Rosaelia, cradles Mena’s 1-year-old grandson, also named
after him, whom he never saw.
Little Maria del Carmen, 8, and Alejandro, 11, attend a small
rural school; no secondary school is reachable for Juanita, 11,
Irene, 14, and the others. The younger children grasped that their
father was dead when they saw his body at the funeral. Now they
treasure his clothes.
“We try not to talk about it too much,” Rosalilia said.
“Thinking about their father makes them feel very bad.”
The pastoral lifestyle Mena preferred to modern city life is
also a dream for thousands of other migrant workers in the United
States. For lack of money as Mexico modernizes, they travel north,
sometimes at great risk, to fill proliferating U.S. jobs that pay
$8 an hour or less. Our humming economy depends on their labor.
U.S. big business is lobbying Congress to allow more migrant
workers, especially those with basic skills, lest labor shortages
force up wages.
Yet rather than settle in the United States, many like Mena
work solely to build up what’s theirs back in Mexico, using their
savings to expand rural houses and herds. Here in rugged
6,000-feet-high eastern Jalisco, electricity lines installed
around 1993 and telephones more recently raise the possibility of
comfortable rural living.
For one fleeting moment in 1997, Maria del Carmen said, she
felt Mena had achieved his Mexican dream. Water holes were full.
Green maize shoots poked up from the field. Mena strode proudly
from the adobe house to the field. “I was walking with him. We
were walking with all the children too.”
She wanted that togetherness every day.
“I’d tell him: “Come back and live with your brother and
sisters and horses,'” Maria del Carmen said. “He’d say he’d come
back when he got some more money.”
His mother Julia said she regularly reminded him: “Save the
money. Send it to Mexico. Or bring it. So that you can stay here
and not have to leave so much.”
Mena was born during hard times. His father moved from the
town of San Miguel across what is called “El Canon” to a mesa.
Drought soon drove the family away again to the current farm near
the stone church and a dozen or so homes that together are known
as San Felipe Jesus de las Casas Blancas.
They sold a little maize.
Mena loved horses, his brother Salvador, 58, said in the
dirt-floor house where he lives nearby. “Charro” horsemen are
local heros to this day.
School for Mena lasted only a few years. Work beckoned. At 18,
he left Mexico, crossing to Arizona, where he drove a tractor.
Back from that first stint abroad, he was playing soccer one
day when Maria del Carmen and friends stopped to watch. He
remembered her. A few weeks later at a fiesta nearby in Jalpa, he
approached. “He said: “I want you to be my girlfriend,'” Maria del
Carmen recalled. “I said: “Yes.'”
They married. “He wanted a family.”
To that end, Mena moved north again – the migration that would
repeat itself again and again over nearly three decades. In the
United States he worked as a meatpacker, cook, busboy while she
raised their babies. Family photos show Mena working at one
restaurant in California. He wore a clean white shirt with black
bow tie and cap. He tended bar, washed dishes in the kitchen,
wiped tables and, after closing time, swept the floors.
When he returned to Mexico, his children said, he brought them
presents: bicycles, dolls, a tape deck. Once he brought a
television. The kids spend hours watching a wide commercial world
from the countryside here.
The children especially remember his way with horses. “He
could make one lie down, and then he’d motion and it would get
up,” Rosalilia said.
Ismael Jr. recalled: “He would say “Never hit an animal. Talk
with them, chat. Feed them well. And stroke them.'”
He also worked on roads. Once, his brother Salvador said, he
cracked a rib trying to pry loose a rock. For days he wheezed.
Unable to work on his farm, he arranged to serve as policeman
in the sleepy town of San Diego de Alejandria. A family photo
shows Mena standing with a pistol tucked into the waist of his
trousers. Six months later, he turned in the pistol and the
bullets. “He thought police work might be dangerous,” Salvador
said. “He wanted to get back to the ranch.”
Yet to buy animals, Mena had to migrate, carrying a crinkled
Virgen de Guadalupe prayer card in his wallet.
Mena left last in August 1997. He worked for a beef company in
Idaho, earning more than $18,000 in 1998, according to records
attorney Maes collected.
Last year he moved to Colorado, staying first with cousins in
Fort Lupton, cleaning apartments and landscaping.
He moved into Denver as pressure mounted back home: Ismael Jr.
had collapsed. Maria del Carmen and her parents hauled him to San
Julian. “He was almost in a coma,” said Dr. Ismael Macias, who
gave basic treatment and then sent the boy to a hospital in
Guadalajara. He lay for 15 days on intravenous fluid. The final
diagnosis is that “his pancreas does not work at all,” Macias
said. He needs insulin daily.
Mena began building up savings when he landed what his son
Heriberto described as a $300-a-week job at the Coca-Cola bottling
Heriberto recalled their last telephone conversation: “It was
difficult for him to sleep at day. But he was happy with this
work,” said Heriberto, a restaurant worker in Los Angeles.
Mena also “asked about the family. He said he was going back
to Mexico this year.”
Coca-Cola managers said they were preparing Mena to drive
At daybreak, Mena would walk two blocks past public housing
and an alley where dealers and junkies would hang out. He’d climb
the 15 stairs in the house at 3738 High St. where he rented an
8-by-8-foot room. The window looked out on the Coca-Cola plant and
a round brick smokestack in the distance. And he’d sleep.
Penciled Xs still mark the spot where bullets pierced walls
in Mena’s room during the midday raid on Sept. 29. A
Spanish-speaking little girl from another family now sleeps there.
Mena was sleeping when police burst in.
They’d been paying an informant who once used drugs to make
undercover purchases in the area. Based on his information, they
secured a no-knock warrant for the two-story house where Mena
lived. The informant apparently got mixed up.
Police said they shouted “Police!” and “Policia!” as they
entered. They pinned down Antonio Hernandez in the room next to
Earlier in September, police apparently had confiscated a gun
Mena was carrying illegally. They say he had another one on Sept.
29, a Burgo .22 – untraceable so far – and that, despite their
warnings, he fired three shots.
Police fired too. Eight bullets tore into Mena’s face, chest
and arms. He died at the scene. Here in Mexico, his sister Maria
de Jesus figured he had the gun “for his protection” in a
dangerous big city.
The shooting was “a violation of basic human rights,” Dr.
“Police shouldn’t be able to do things like this,” Mena’s
brother Salvador said.
“Who fired first?” nephew Sergio, 26, wanted to know.
Sergio feels the “indignity” acutely. When he was headed to
the United States for work in 1992, his mother Maria de Jesus told
him to go with her brother. The men crossed near Tijuana. Though
Mena knew the way well, he hired a “coyote” guide for $800, Sergio
said. “He wanted to be more sure we’d make it because of me.” In
tense moments crossing, Sergio recalled, Mena encouraged him.
“He said: “We’re going to go work … We’ll go and earn a
Today the farming lifestyle Mena loved is generally
threatened. His relatives hanging on here still contend “nothing’s
At night, cattle low amid nopal cactuses, dogs howl, and
constellations light the sky: Virgen de San Juan in the north,
Ojos de Santa Lucia overhead, and the Cruz de Mayo to the south.
But shoe factories run by transnational companies are the
focus of economic action in the region. Small farming in Mexico
“doesn’t work economically,” said Dr. Macias The land is too poor
and there’s not enough water, he said. “It doesn’t pay. Fertilizer
costs. Seeds cost.”
Dr. Macias worries that Mena’s children still are “suffering
a lot.” He and others advise Maria del Carmen to move into San
Julian so her children can salvage some education. Then they could
work in small business.
Maria del Carmen has a sewing machine. With money from Denver,
she said, she might afford a house. Living in San Julian would
cost about $1,000 a month, she figured. Rosalilia says she’s
interested in designing clothes. She wants to make up the school
she’s missed over the last eight years.
“I’d say it would be justice to help my brothers and sisters
with their studies. Because my father can’t help us. We don’t have
The decision to sell off the animals was painful, Maria del
Carmen said, and if immigration papers were available she’d
consider leaving Mexico altogether and moving to the United States.
“It’s over,” she said of the farm. Yet nobody’s ready to
really accept that, least of all Dona Julia.
In Mena’s empty stable, she tried to fix his bridles and
lassos. She nailed a stirrup on the wall above a crucifix and
She envisions everybody back in the house. “Como antes,” she
said. “Like before.”
Money from Denver might help at least fix up the farm,
“starting with Ismael’s room,” she suggested. She envisions white
paint on the walls, a tiled floor “not cement,” a new door, with a
tractor and little cow outside.
The last time she spoke with Ismael, “he told me, “You know, I
love you too much.’ I cried,” she said, crying again.
“He told me: “Don’t cry. When you think about me, just make a quick prayer. Nothing more.'”
Ruling affects criminals whose native countries won’t allow them back home
Federal appeals court judges in Denver on Tuesday backed the
government’s power to detain indefinitely immigrant criminals
whose countries won’t take them back.
Weighing into a national dilemma, their 10th Circuit Court of
Appeals ruling asserts that this growing class of deportable
immigrant criminals has lost basic rights under the U.S.
The ruling upholds a 1996 law requiring deportation of
immigrants convicted of crimes and detention of those who can’t be
deported. Under the law, the U.S. Immigration and Naturalization
Service is holding 4,566 immigrant criminals, filling up a fourth
of INS detention center beds.
The appeals court case concerned two Vietnamese men detained
at a 340-bed regional INS detention facility east of Denver.
Now they and other detainees – including a Laotian named Sia
Vang who appeared in a separate federal court case Tuesday –
depend more than ever on INS discretion if they ever are to rejoin
U.S. District Judge Lewis Babcock delayed a decision on
Vang, who was sentenced to 24 years of probation in 1996 for
sexual assault on two preteen girls.
In addressing the constitutional concerns, the appeals court
judges declined to interfere with the law Congress passed in 1996,
which set no time limit for detention.
“This court will not substitute its judgment for that of
Congress by reading into the statute a time limit that is not
included in the plain language of the statute,” Appellate Judge
Michael Murphy, a Clinton appointee, wrote in the 33-page ruling.
Releasing the two Vietnamese detainees who sought freedom
under the Constitution would amount to awarding them “the very
right denied them as a result of the final (deportation) orders,
the right to be at large in the United States,” the judges
reasoned. “The relief they seek is indistinguishable from a
request to be readmitted to this country.” But these and other
immigrant criminals whose countries won’t take them back are
indisputably here, critics emphasized after the ruling. The cost
to U.S. taxpayers tops $100 million a year.
Appellate Judge Wade Brorby, a Reagan appointee, issued a
sharp dissent to the ruling: “Governmental conduct that so reduces
an individual to a “non person’ to permit such imprisonment most
assuredly shocks my conscience,” he wrote.
The ruling immediately drew calls for reconsideration from
immigrants’ rights advocates nationwide.
“We’re going to continue fighting,” said Judy Rabinovitz, a New
York-based senior lawyer for the American Civil Liberties Union,
who argued the case with local lawyer Jim Salvator last July.
Immigrants convicted of crimes “are human beings,” Rabinovitz
said, “and our Constitution protects all persons from deprivation
of life, liberty and property. The two-judge majority
fundamentally misconstrued the constitutional issues presented in
A former INS legal chief joined in the outcry.
“Anybody in the United States subject to government power is
entitled to the protection of the Constitution,” said Alex
Aleinikoff, chief INS counsel from 1994 to ’97 and now a professor
at Georgetown University Law Center.
“The conclusion that there are people in this country who can
be arbitrarily detained indefinitely, on the theory that they have
no rights is inconsistent with developments in due process law
over the last century.”
And University of California law professor Charles
Weisselberg, a veteran immigration lawyer, suggested that U.S.
moral authority will suffer. “This makes it harder for us to hold
other countries accountable (for jailing people indefinitely) when
we give people in our country the back of the hand.”
The decision in Denver begins to firm up an uncertain
landscape for detention of immigrants. It’s the second appellate
court ruling supporting the 1996 immigration law that has led to
hundreds of cases in federal district courts nationwide. The Fifth
Circuit Court, covering Texas and Louisiana, ruled last August.
The Ninth Circuit Court in California is expected to rule soon
after hearing arguments earlier this month. Circuit court
decisions are binding in their areas for federal judges ruling on
Federal district judges have been divided, and rulings for
and against the law are mulitiplying.
INS officials took Tuesday’s ruling as less than a green
light for future detentions. They’re reluctant to use their powers
too frequently in part because they don’t have room for many more
“The fact that you’ve got two circuit courts that have
basically upheld that the law is constitutional is certainly
significant,” INS spokesman Russ Bergeron said. “But it does not
resolve, finally resolve, the issue. And it may be that ultimately
you will need a Supreme Court decision given the varying district
The burden of housing growing numbers of immigrant criminals
has forced INS leaders to ask to transfer some to regular federal
prisons. And INS officials say they want their $4.4 billion annual
budget increased this year to afford more beds. INS agents in some
parts of the country who catch illegal immigrants are forced to
release them simply for lack of space.
“Detention is a crucial component of our overall enforcement
effort,” Bergeron said. “The greater our capacity to detain, the
greater our ability to return credibility to the nation’s
In Colorado, INS District Director Joe Greene awaits further
instructions from the appellate court.
But Greene said he doesn’t plan on changing his approach to
Vang and other detainees or the reviews and voluntary releases
that the INS began a year ago aimed at easing constitutional
At least 1,000 immigrant criminals, convicted of crimes from
manslaughter to misdemeanor drug offenses, were released into U.S.
cities this past year.
All this is bad news for Vang, because Green still considers
him a threat to public safety. “I have to wait,” Vang concluded
glumly Tuesday morning.
The good news for the INS, Greene said, “is that the circuit
has spoken. At least the law for my region has been settled –
until the Supreme Court chooses to decide. That means a little
less litigation, doesn’t it?”