Unproven Terror Suspicions Lead to Deportations

What happens when the government investigates an immigrant for terrorist ties, but can't find sufficient evidence? Often, officials can get the suspect deported on immigration charges that have nothing to do with the original terror claims.

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The Department of Homeland Security is trumpeting what it calls an important victory against a suspected al-Qaida agent living in the United States. An immigration judge in Seattle has ordered the deportation of an Iraqi refugee who allegedly tried to help a terrorist enter the country. In spite of the terrorism accusations, the man has not been charged with a crime. Critics say that's because the government doesn't have any solid evidence against him. And they say he's one of many immigrants deported because of unproven suspicions.

NPR's Martin Kaste reports from Seattle.

MARTIN KASTE reporting:

The suspicions first surfaced in the 9/11 Commission Report. It describes a top al-Qaida operative, known as Khalad, and his unsuccessful attempt to get a visa to the U.S. in 1999. According to the report, Khalad used the name of a person living in the United States as a contact. Khalad is now in custody, but who was that contact?

Unidentified Woman: Do you want tea?

Unidentified Man: If you've got it ready, I'll have it. Yeah. Wonderful.

Unidentified Woman: Yeah, it's just now here.

KASTE: A federal investigation led here to the all-American suburban ranch home of Sam Malkandi, a Kurdish refugee from Iraq. Last August, agents led him away in handcuffs and he's been in detention ever since. His wife, Mali, has left the Christmas tree up in hopes that he may still come home. When you ask her why her husband would be the contact for Khalad, she waves away the very sound of the terrorist's name.

Mrs. MALI MALKANDI (Sam Malkandi's Wife): Really, I cannot pronounce the name. Also, I don't know really. I don't know them. We don't know. My husband, also, never know who they are.

KASTE: Sam Malkandi admits he did help to make a medical appointment for someone coming from the Middle East. Malkandi's name appears on a letter from a local clinic confirming the appointment. But he says he was just helping the friend of a friend. It was a simple favor for a stranger from Yemen, who he says he met at the local shopping mall. At worst, the family says Malkandi was simply al-Qaida's unwitting dupe.

Mrs. MALKANDI: He never wanted to help somebody like terrorists. You know? Because I know my husband. I live with him, you know? And he is a really peaceful man.

KASTE: Malkandi has certainly made a peaceable impression. He's received statements of support from teachers, neighbors, and a retired sheriff's deputy. The family displays photos of him waving the American flag in downtown Seattle in 2003, celebrating Saddam Hussein's defeat. In those pictures, he bears more than a passing resemblance to Groucho Marx. But Seattle Immigration Judge Kenneth Josephson is not impressed. This is a court recording of his ruling.

JUDGE KENNETH JOSEPHSON (Immigration Judge): I believe we are dealing with personal efforts made by Mr. Malkandi, which posed a direct threat to the security of this country.

KASTE: The judge didn't buy Malkandi's story. For one thing, no one can find the man Malkandi says he met at the shopping mall. But despite the judge's suspicions about him, Malkandi is not actually being deported for terrorism activities. He hasn't even been charged with a crime. Instead, his removal from the U.S. is based on immigration violations. During the investigation, the feds realized that Malkandi obtained his refugee status and came to the U.S. by telling lies about his past, including a story about being jailed in Iraq for his politics.

Terrorism allegations may have brought him to the feds' attention, but immigration fraud is what sealed his fate. His 18-year-old daughter, Nicole, says it's an extreme punishment for those old lies.

Ms. NICOLE MALKANDI (Sam Malkandi's Daughter): Put yourself into his shoes, actually. If you were alone in Pakistan with your one year old daughter starving, having no shelter, and when you know there's United Nations over there, you would save your daughter's life for a lie.

KASTE: Sam Malkandi's lawyer says the government is using his immigration violations as a backdoor way of getting rid of him, because it knows it doesn't have the evidence to back up terrorism charges. The government's lawyer says there's nothing backdoor about immigration court.

Ms. DOROTHY STEFAN (Chief Counsel, Immigration and Customs Enforcement): The immigration laws are laws. They're not just technical laws. They are laws.

KASTE: Dorothy Stefan is the chief counsel for Immigration and Customs Enforcement in Seattle. Essentially, she's a prosecutor for immigration court. She says the government is not getting Malkandi on a mere technicality.

Ms. STEFAN: In this day and age, when the 9/11 Commission Report criticized the government because we're not vigilant enough to ascertain people's identities, and who they really are and that could pose a serious security risk to our country. When we have people who lie on applications, that is significant to us.

KASTE: Malkandi is not the only terrorism suspect to land in immigration court. Seattle lawyer, Hilary Han represents a Somali immigrant who has been in federal custody since last November. Although federal agents have been investigating him for terrorism, Han says they have yet to file any criminal charges.

Mr. HILARY HAN (Attorney): Their evidence would never hold up in a criminal court.

KASTE: So far, the Somali's case is purely an immigration matter. He's also accused of lying about his past. But Han says even in the absence of criminal charges, the feds have created the aura of a terrorism trial.

Mr. HAN: They have a guard on the roof, watching people who are waiting outside the facility, through binoculars. Where they, you know, just really intimidate both witnesses and, I think, the immigration judge into believing that this is more than, you know, what the evidence shows.

KASTE: It's impossible to know just how often terrorism suspicions lead to immigration charges. But the government's own numbers suggest a trend. After 9/11, the number of people from Muslim countries who were deported for non-criminal immigration violations jumped 70 percent. Even now, the number is 40 percent higher than it was in 2000. During the same period, non-criminal deportations for all other nationalities stayed level.

Prosecutor Dorothy Stefan says she understands that some people have misgivings. But ultimately, she believes this is an appropriate use of the immigration courts.

Ms. STEFAN: If we can facilitate the removal of people who are affiliated with terrorism or are involved in terrorism, or in any way threaten or harm our community, I'm all for using the immigration laws to do that. Moreover, Congress is for it.

KASTE: still, there's something fundamentally unsatisfying about terrorism investigations that end up in deportation. The mystery is never really solved. In Washington, D.C., Homeland Security officials hint that they know more about Malkandi's case, and cases like it, than they're at liberty to share. But they usually say these things off the record, which only deepens the frustration for anyone trying to get at the truth.

It infuriates young Nicole Malkandi, who's seen plenty of courtroom dramas on TV, and who's come to expect the American legal system to be a little more straight forward.

Ms. NICOLE MALKANDI: If he might be innocent or not, but let's be a hundred percent sure that he is innocent or not, so we don't play with his life and his family's life and destroy a family.

KASTE: But a hundred percent certainty is a standard of proof that immigrants may not be able to count on, especially in a nation still hunting for unseen enemies.

Martin Kaste, NPR News, Seattle.

MONTAGNE: This is NPR News.

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