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On Thin ICE
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By Joe Follansbee
About an hour before dawn on February 22, 2002, just six months after 9/11, then-20-year-old Nadin Hamoui was asleep in the room she shared with her 14-year-old sister, Rham. Nadin, a college student, lived with her mother, father, brother and sister in a modest house in Lynnwood. Just as Nadin was waking, she heard a commotion outside her room and stepped into the hall, leaving the light off. Dressed in her nightclothes, the petite, dark-eyed woman peeked around a corner and faced a gun pointed at her forehead.
Instinctively, she put up her hands in surrender, and the U.S. marshal holding the weapon led her away.
"We were totally freaking out," she remembers. "We were crying. We felt violated in the most absurd way." Nadin, her sister and her parents-none of them citizens-were placed under arrest.
Nadin and her family had been caught up in a federal dragnet set in motion by then-U.S. Attorney General John Ashcroft. Less than a month earlier, his office had approved a memo announcing the Absconder Apprehension Initiative, which targeted illegal aliens who had ignored orders to leave the country.
According to the memo, 314,000 people fell into this category, but the attorney general was mostly interested in several thousand who came from countries where the al-Qaida terrorist group operated. "We believe that some of them have information that could assist our campaign against terrorism,"
the memo said.
The Hamoui family-immigrants from Syria-had no connection whatsoever to al-Qaida or terrorism, a fact confirmed by the FBI a few days after their arrest. But they fell victim to poor legal advice, according to their current attorney, and an immigration system they did not understand. Ever since the family's 1992 arrival in the United States, they had sought legal counsel. One lawyer who claimed he specialized in immigration law advised them to disregard a directive by the Immigration and Naturalization Service (now Immigration and Customs Enforcement, or ICE) to report for deportation.
That suggestion set the stage for the government's raid on the Hamoui home and nine months of detention for Nadin and her parents. (Her sister and youngest brother were left in the care of their uncle.) If a new attorney hadn't prevented their deportation, the Hamouis believe they would have been imprisoned, even executed, in Syria.
Nadin's father, Safouh, who ran a small grocery store in Edmonds, came to the United States because he feared for his life. A veteran pilot in the Syrian Air Force, he flew passenger jets for the Syrian government. Once, he was flying a plane carrying a number of high-level government officials, and the flight encountered severe turbulence. He landed the plane successfully but was accused of trying to injure or assassinate the officials. He sent his wife and five children to live with his brother in the United States, then decided to flee himself and join them. Safouh requested political asylum. (Amnesty International reports that Syria has imprisoned hundreds of people for political reasons and that the government tortures its citizens "with impunity.")
Shortly after arriving, Safouh Hamoui hired a Seattle attorney to handle his asylum claim. He told the lawyers "about my intense fear of returning to Syria, where I would certainly be tortured, and perhaps killed," Hamoui said in an affidavit. The ICE interviewed Hamoui, who spoke little English, without an Arabic interpreter for about 15 minutes and denied his asylum claim. The denial was appealed, and Hamoui appeared before an immigration judge in 1997, again without an interpreter, although his attorney apparently did not object. The claim was again denied, and the lawyer filed another appeal, this time to the Board of Immigration Appeals. But the paperwork was filed two months late, and the claim was turned down in June 1998.
Safouh turned to another attorney who practiced immigration law in Seattle.
This lawyer took the asylum claim to the Ninth Circuit Court of Appeals and it was turned down in 2000. But the attorney missed an opportunity: Because of Hamoui's fear of torture in Syria, he could have filed a claim for relief from deportation under the 1984 United Nations Convention Against Torture, which was ratified by the United States in 1994. The treaty forbids sending people to their home countries if they might be tortured. But the second attorney never mentioned the treaty, according to an affidavit signed by Hamoui. That attorney quit the Hamoui case after the Ninth Circuit denial.
In danger of deportation, the Hamoui family found yet another immigration lawyer. According to an affidavit signed by Hamoui, this attorney filed a claim under the Convention Against Torture, but the claim was denied. Around the same time, in August of 2000, the Hamoui family received letters ordering them to report to the ICE office in Seattle for deportation. Hamoui says the third attorney told him to ignore the letters because the ICE couldn't act while his torture claim was pending. "[He] instructed me to 'go relax. Live your life. Don't be nervous.' Because my attorney gave me this advice, I did not report to the INS," Hamoui says.
Immigration saw the situation differently. Because the Hamouis failed to appear, they became "absconders." About a year later, 9/11 took place. In 2002, Attorney General Ashcroft signed off on the Absconder Apprehension Initiative, and the Hamouis were arrested a month later by more than a dozen FBI agents, ICE agents and U.S. marshals in riot gear. Adding insult to injury, the government had ruled against Hamoui's torture claim three weeks before the arrest.
Nadin, her father Safouh, and her mother, Hanan, were taken to the ICE detention center in Seattle. "For the first two months, we didn't even know why we were there," Nadin recalls. She also remembers vividly her mother fighting for her religious rights. A devout Muslim, Hanan would not allow herself to be seen by men outside her immediate family without a head scarf.
Nadin says the jailers cared little about the family's beliefs, despite rules requiring them to accommodate religious practices. "Mom argued with them," Nadin says. "My mom said, 'You'll have to kill me before I take it off.'" Nadin interprets the jailer's response as, "If that's what it takes, so be it.
"But my mom won. She kept her scarf on."
In the midst of this Kafkaesque disaster, the family's legal story took a turn for the better. The third attorney was replaced by Seattle immigration lawyer Bernice Funk, who has a solo practice. She was hired by an Arab-American community organization to help the Hamouis. Funk enlisted the help of immigration specialist Diane Butler with Lane Powell's Seattle office, as well as Michael B. King and Douglas E. Smith, both with Lane Powell at the time. The new legal team filed additional asylum and torture claims, arguing in part that ineffective counsel had destroyed the Hamoui's efforts. Funk says undoing nine years of "totally destructive lawyering" was difficult.
According to a 1984 U.S. Supreme Court case, Strickland v. Washington, defendants are denied the Sixth Amendment's right to counsel if an attorney's actions are deemed not reasonably competent and made a difference in the case. "Missing a filing deadline is incompetence under the Sixth Amendment," says John Strait, associate professor of law at Seattle University.
To lay the groundwork for the new appeals, Safouh filed a complaint with the Washington State Bar Association against the family's original attorney, who was admonished by the Bar's disciplinary board in 2002 on an accusation of lack of diligence and censured by the board on a similar claim in an unrelated 1997 action. Hamoui's other pre-ICE arrest attorneys have less than stellar records: The second one was censured in 2001 for an accusation of incompetence and received a 30-day suspension in 2005 for unreasonable fees; the third one was disbarred in 2006 on allegations including violation of state and federal tax laws.
Matt Adams, interim executive director of the Northwest Immigrant Rights Project in Seattle, says the Hamoui family's experience with the justice system, including incompetent representation, is all too common. "Immigrants are not in a position to stand up and demand what they are entitled to," he says. "Every contact with the system is intimidating to them."
Despite the family's troubles, there's a happy ending to the Hamoui story. A ruling in 2002 by U.S. District Court Judge Barbara Rothstein kept the family safely in the United States while its new appeal played out. In the end, Safouh and Hanan received permanent resident status; they were sponsored by their son Sam, a naturalized U.S. citizen. Nadin gained permanent residency, and Rham was granted asylum. (Another sister, Suzan, was married to a U.S. citizen at the time of the arrest; the youngest son, Mouhamed, was born in the United States.)
Today, the family lives a pretty typical American life. Safouh works for Boeing in a job that includes a security clearance. Nadin is now a secretary at Perkins Coie in Seattle. Though her anger over her family's experience still burns, she quotes Friedrich Nietzsche-"What doesn't kill you makes you stronger"-and she recalls the relief she felt when she learned she could stay in the United States: "It's like finding out that you had cancer and discovering it was gone, or the diagnosis was wrong." L&P
