The appeal of Ibrahim Parlak--one of the most important immigration cases in recent years--is scheduled to be heard by the Sixth Circuit Court of Appeals in Cincinnati on Monday, October 22. Parlak's case is important because of the two fundamental questions it presents:
- Should immigration courts be allowed to rely on evidence from torture-induced confessions in deportation hearings?
- Should DHS be allowed the unlimited discretion to retroactively designate any group of "two or more individuals, whether organized or not" as a "terrorist organization," even if that group has not engaged in "terrorist activity" for decades? Note that "terrorist activity" does not have to include violence. "Material support" or fundraising for terrorist organizations qualifies. If the Court agrees, then DHS is free to brand members of the Irgun, African National Congress, and even the French Resistance from WWII as terrorists.
A brief video from Ibrahim's supporters and more on his case after the flip.
Ibrahim's case has been well-publicized over the years--by Nightline, CNN, and even a cover story in the New York Times Magazine. For those unfamiliar with his saga, Ibrahim is a Turkish Kurd who came to the United States in 1991 and sought political asylum. In the 1980s, Parlak had fled Turkey for western Europe, having suffered years of persecution by the Turkish government for standing up for Kurdish rights. In Europe, Parlak remained active in the Kurdish freedom movement and organized Kurdish folk festivals on behalf of the ERNK, which was the political front for the PKK at that time. In 1997, more than ten years later, the U.S. State Department designated the PKK as a foreign terrorist organization (FTO), and it remains one today. Neither the State nor Treasury departments has ever designated the ERNK an FTO or source of terrorist funding (SDGT).
Parlak sought to re-enter Turkey in 1988 to continue his non-violent commitment to preach Kurdish rights. To prepare for his journey--which required him to enter Turkey surreptitiously--Parlak trained at a PKK camp in Lebanon for eight months. He received training in how to survive the rugged terrain of southern Turkey and win political converts; he did not receive training in military or terrorism tactics. During his first attempt to re-enter Turkey, Parlak and his group were detected by Turkish border guards. A firefight broke out, and two border guards were killed. Parlak did not fire his weapon. He and his group successfuly entered Turkey a few months later, hundreds of miles west of the theater of Turkish/PKK conflict.
Parlak was eventually found by Turkish authorities and arrested in October 1988. After three weeks of incommunicado detention, in which he was brutally tortured, he was imprisoned for 17 months. Eventually, he was hauled in front of the Turkish Security Court as part of a mass trial. His crime? Advocating for the secession of Kurdistan. He was convicted in March 1990, based upon the coerced "statements" he had given various Turkish prosecutors and released the same day for time served. The Security Court ruled that Parlak was not responsible for the death of the soldiers. (The Security Courts were eventually disbanded in 2004 under pressure from the EU, on the basis of their reliance on torture-induced evidence and inclusion of a military judge.)
A new life in the United States
When Parlak arrived here in 1991, he disclosed the following on his asylum application:
- He was a "leading member" of the ERNK, which had "close ties to the PKK."
- He had been at a PKK camp in Helve, Lebanon, for nine months.
- He had been arrested and convicted by the Turkish government.
- He had been involved in a firefight at the Turkish border.
Parlak also included a newspaper article, in Turkish, describing the fact that he had been on trial for the death of the two Turkish soldiers. It was later discovered that the individual who had translated the article for Parlak did so inaccurately, failing to include facts about the "martyrdom" of the Turkish soldiers. Parlak spoke no English when he arrived in the United States. It appears this article played little role in the asylum decision, although the mistranslation would haunt Parlak later (despite his inability to detect it at the time).
Our government's reaction to these facts? "Welcome to the United States, Mr. Parlak." The INS granted Ibrahim asylum in 1992.
Parlak then went on to do what millions of lawful immigrants did before him: pursue the American dream. He took a job as a busboy in the Ritz-Carlton Hotel in Chicago and learned English. He applied for his green card in 1993 and received it in 1994. He "moved up" to take a job as a cook at a truck stop. Eventually, he bought his own restaurant, Cafe Gulistan, in Harbert, Michigan. He fell in love and became a father. In 1998, Parlak applied to become a naturalized citizen, having satisfied all the criteria for doing so.
Three years after he applied for naturalization, Parlak had heard nothing back from INS. He asked his attorney to file a mandamus action against INS, which he did--on September 10, 2001. It was all downhill after that. In November 2001, in the wake of 9/11 and the Patriot Act, the INS rejected Parlak's naturalization application. Five months later, the INS initiated deportation proceedings against him.
Case history
Initially, Parlak faced two charges. The first was that he had attempted to defraud the INS by not disclosing on either his green card or naturalization applications that he had been arrested in Turkey. Parlak had, of course, extensively disclosed this arrest on his asylum application. The second charge was a bit more bizarre. The INS claimed that Parlak's organization of Kurdish folk festivals for the ERNK in Germany amounted to persecution of the Turkish people. The INS did not take Parlak into custody at this time.
Then, in July 2004, all hell broke loose. In one of its last acts before being disbanded, the Turkish Security Court re-sentenced Parlak--to less than time served--for his 1990 conviction. Parlak, of course, had come to the United States in 1991. Based on this opinion, DHS, in a truly Kafka-esque move, charged Parlak with being an aggravated felon convicted after his admission to the United States. As an "aggravated felon," Parlak was subject to mandatory detention under the Immigration and Nationality Act ("INA"). He was taken into custody on July 29, 2004, and held for 10 months, without bail, in the Calhoun County Jail.
This arrest both outraged and energized Parlak's southwest Michigan community. The "Red Arrow Highway" strip between New Buffalo and St. Joe's is an interesting mix of people, consisting of lakefront liberal weekenders from Chicago and rock-ribbed Republicans from Fred Upton's congressional district. Both groups viewed Parlak as a pillar of the community; one of his most vocal advocates, Martin Dzuris, hosts a conservative talk show on local radio. This vocal opposition from the community eventually resulted in DHS escalating the charges against Ibrahim to include three counts of terrorism. In December 2004, an immigration judge ruled against Ibrahim on all counts after a two-day hearing. Notably, major sections of the immigration judge's opinion--including her 15-page "analysis" of the terrorism charges----was nothing more than a cut-and-paste of government briefs (including the same citation errors) filed before the hearing. The immigration judge's opinion cites to the Security Court confessions 88 times. It ignores the mountain of evidence of Parlak's torture--including the testimony of both Parlak and his expert witness (an authority on the Kurds and their history in Turkey), State Department Country Reports, human rights reports, and the conclusions of an independent panel of lawyers--citing this evidence one time.
Parlak fared no better before the Board of Immigration Appeals. The BIA held that because the IJ had made no "finding of fact" regarding whether Parlak's "confessions" had been coerced, the issue was unreviewable (despite the fact that the IJ had cited to these confessions 88 times). Instead, the BIA analyzed the case as if the torture-induced evidence had never been presented. Never mind that the IJ had cited to it 88 times. Never mind that the IJ had found Parlak "not credible" in part because of discrepancies between his testimony and the Security Court documents. Never mind that the Government's expert had relied on the same evidence in forming his own conclusions. This reliance, according to the BIA, was nothing more than harmless error, despite the fact that the torture-induced evidence had infected everything in the immigration court proceedings.
Also troubling is that the BIA bought into the Government's interpretation of the following definition of "terrorist organization."
a group of two or more, whether organized or not which engages in or has a subgroup that engages in [various types of terrorist activity, including soliciting funds or providing material support]
The BIA ruled that this definition has no temporal limitation. In other words, DHS has unlimited discretion to designate any group of "two or more" individuals as a "terrorist organization," even if their allegedly "terrorist" activities occurred decades ago. Who qualifies? Two immigrants on one side of a barroom brawl in 1990, if they used a "dangerous object" like a broken beer bottle. Any group of immigrants peacefully protesting if anyone else in the group does something stupid like throw a rock at a police officer. Immigrants who provide sack lunches to the protestors, as they have afforded "material support" to a "terrorist organization." Even immigrants who bought Chiquita bananas or Citgo gasoline (as the Venezuelan government owns Citgo and supports Castro). That donation to Catholic Charities for tsunami relief? Prove to us you didn't know that part of it could end up in the hands of the Tamil Tigers. It's material support, after all. No current or even post-9/11 involvement in terrorism is necessary. In fact, even contributions to lawful organizations (like the Red Cross, Catholic Charities, UNICEF, and yes, the ERNK) can now make any immigrant a terrorist if there are any financial links to terrorist organizations.
At least Parlak has remained free on bond since June 2005 as his appeal has progressed. In June 2005, a federal judge granted Parlak's petition for a writ of habeas corpus ordering his release from jail. His homecoming was quite a day.
What now?
And so, in less than 4 weeks, a federal court of appeals will be asked to do the following. The first is to rule that torture-induced evidence has no place in legal proceedings in this country. The second is to rule that Congress did not give DHS unlimited discretion to designate "terrorist organizations" out of whomever happens to piss them off at the time for events that may have occurred decades ago.
And the third is to echo the words of Judge Avern Cohn, who had this to say about Ibrahim in his order releasing him from custody:
[Mr. Parlak] has lived an exemplary life in the United States....He has been a model immigrant vigorously asserting his right to remain in the United States. He is not a threat to anyone nor a risk of flight. He has strong ties to the community in which he resides.
Free Ibrahim!