BAY WINDOW: How typical is it where somebody comes to San Francisco International Airport and they say they're afraid and, subsequently, they have a rocky time with the inspectors and they spend the next six months in jail. Is this normal or is Khaled an exception?

RUSTY SCHWARTZ: I don't know the numbers because the INS doesn't share any of the information with respect to how many people are sent back without having had a credible fear hearing. Certainly in my client's case, in Khaled's case, he was certainly given a very rough going over before he was granted any kind of a credible fear hearing. In his case he expressed over ten to fifteen times, I want asylum, they're going to kill me if I go back to Algeria and he was really met with we're sending you back. I don't know whether that's an investigative technique they have to sort out, who are the real asylum seekers and who are people who don't really have that fear. In his case he really became quite anxious. He broke the coffee cup on the table and stabbed himself because he was extremely agitated. I don't really know whether it's typical or not but I know that it happens often.

BAY WINDOW: The INS says that everyone that expresses any fear at all at SFO gets a credible fear hearing. What's your response to that?

RUSTY SCHWARTZ: I know that that's not true because in fact my client expressed very clearly his fear. He was certainly not even told anything that was going on. That's a real problem: these guys that come in and are scared to death and are immediately handcuffed. They're not told what's happening to them. When I finally did see my client after two months in jail, he had absolutely no idea what was going on. We had to start from scratch and really tell him, you are applying for political asylum. It's the only way you're going to be able to stay here and not be sent back to Algeria. He had absolutely no concept that it took literally weeks before he understood what was going on, before he had any trust even of me, his attorney. It took weeks just to get him to open up and to start telling me what had happened to him. These people come from situations where there's tremendous strife in their countries. They have been subjected, by one group or another, to extraordinary circumstances and violence and they've learned to clam up and to not open so quickly and tell people things. When they're met at the airport with INS agents, unless those agents come out and try to set them at ease, the story isn't going to come out. It takes time and it takes trust.

BAY WINDOW: What was happening with him for two months before you were hooked up with him? Was he just sitting in jail not knowing what would happen?

RUSTY SCHWARTZ: For two months he sat in jail, not knowing what was going on. He didn't have an attorney. He didn't know who to call. He had been given a piece of paper that was written in English on one side and I believe Spanish on the other side that was a list of phone numbers for lawyers to call, or agencies to call, but he didn't know that he was to call those agencies. He actually went through his, not preliminary hearing, but he went through his credible fear hearing without an attorney. I think a cellmate actually finally said you should call one of these agencies and get an attorney. This says that you're entitled to a free attorney. So that it took a couple months before that happened, before I was called by the Lawyers Committee for Civil Rights in San Francisco to handle this case.

BAY WINDOW: If Khaled's cellmate hadn't said do this and he hadn't done it, he would have not had an attorney, he would have just been shuttled to and from these hearings and he probably would have been deported by now?

RUSTY SCHWARTZ: That's absolutely right. It happens everyday. Had Khaled's cellmate not told him, and this was actually an exchange for food, if he had not told him you should call one of these agencies, then very likely he would have gone through the entire experience without an attorney. He would have been handed an application for asylum by the immigration judge at a master calendar hearing. He may have gotten some help from some of the other immigration asylum seekers to fill out this application, but he would very likely have gone through the entire process without any attorney at all, which is very difficult to do. It's very legalistic, the whole process. If you don't have grounds for asylum, it doesn't matter whether you come from a country that's horrible and horrific and it doesn't matter what has happened to you, you can be sent back. He would have had no help in filing that application and has very specific grounds for asylum that you must specify. Very few people would know what to write there.

BAY WINDOW: Do all of these laws and acts get in the way of helping people seeking asylum?

RUSTY SCHWARTZ: I think that people genuinely do want to help but on the other hand you have an agency like the INS that is more like a police agency than a social agency. Their job is to make sure that people who arrive and come in are legally entitled to come in. They enforce those laws, in every way they can. These days there are laws on the books that allow them, in total discretion, to send people back to the countries that they are citizens of. There's really nothing that we can do about it. The lawyers don't have access to these people before they're sent back. Some people get through the credible fear hearing process and some people manage to get attorneys and those people are the lucky ones that go through this process with some help. A lot of them do get asylum and a lot of them don't. But the other people who slip through the cracks, they're really in a very, very difficult situation and a lot of them end up going back.

BAY WINDOW: What's the hold up with Khaled's case? He's been here since January. It's now May.

RUSTY SCHWARTZ: Khaled arrived on January 30, and I saw him two months later. He was scheduled for his individual hearings. Those hearings are usually scheduled out two to three months. During that time we're preparing his case. We're trying to find corroborative evidence, which is very difficult when Khaled is in jail because he's only able to make collect phone calls. There's no fax machine. It's just extremely difficult. He's not told how much postage he needs to put on an envelope in order to send a letter back to Algeria, so you don't know whether any of these communications are even getting out. You have about a two-month period where you're preparing the case and preparing for this hearing. Now in Khaled's case the judge was ready to grant asylum in this case but the INS had forgotten to take his fingerprints, which need to be taken and they need to be sent off to the FBI or Interpol or wherever they send them off to make sure that Khaled isn't Osama Bin Ladin trying to get in the country. When those fingerprints come back then, assuming they come back clear, he will be released. That takes about three weeks. Even though he's had his hearing, he's spending another approximately three weeks in jail.

BAY WINDOW: What happens next for him procedurally?

RUSTY SCHWARTZ: Officially his hearing has been continued until May 26. At that point we suspect that he will be granted asylum and he will be released. At that point, he has refugee status and he will maintain that refugee status for a year at which time he can apply for his green card, permanent residency status. That takes about three years because of the backlog, so he will receive his green card after three years, so that's about four years from now. Then four years after that he can apply for citizenship.

BAY WINDOW: Are you allowed to work without a green card?

RUSTY SCHWARTZ: Technically you are not allowed to work without a work permit. Now once he's granted asylum, he can apply for a work permit immediately. It takes about two or three months to receive the work permit, so between the time when he's granted asylum and actually released, until he's received his work permit he's technically not allowed to work. Now he is eligible for some county assistance which amounts to about $350 a month so that's really what he'll be living on.

BAY WINDOW: What's your take on how he's holding up through all of this?

RUSTY SCHWARTZ: I think he's better now than he was. When he arrived, when I first saw him he was in despair. He was totally in despair. He was depressed. He had no idea what was going to become of him and he had started to remember about all of the things that had happened to him in Algeria and he could only think of what's going to happen to him when he goes back to Algeria. He was convinced that he would never get political asylum here. From his treatment and from what had happened, he had really zero hope. As a matter of fact, he had no hope right up until the end of his hearing and even after his hearing he actually thought he had lost. Because the judge was not able to say I grant you asylum, because the fingerprints hadn't been taken yet, Khaled really thought he lost. He was in tears when I saw him at the end of the hearing. He said, no, I've lost. It took us a half an hour just to explain to him that he'd won. But he said look, I'm going back to jail, how could I have won? I'm going back to jail. It was his psychological state. Now it's been a week and a half since the hearing and it seems to be clearer that he understands he's going to be getting out. So he's certainly better than he was. But he still won't let himself entirely believe that he is going to be let out here.

BAY WINDOW: What happens in the relationship between the attorney and the client in an asylum case where you may be their only link in a county where they don't know anyone?

RUSTY SCHWARTZ: The relationship is very close. It becomes close over time. They have to tell us things that are very personal and emotional, embarrassing, so the relationship becomes very close. Of course, we tell them as much as we can about other aspects of this county that are better than the experience that they're experiencing now, which is generally if they're in custody they're in the worst of situations. It's a very close relationship and I expect to maintain my contact with Khaled over the years.

BAY WINDOW: What do you see are the biggest problems of the asylum process and do you have any ideas of what could be a better way to handle this?

RUSTY SCHWARTZ: I think that the biggest problems with the asylum process, especially as it affects people who are arriving in this country without documents, is that they're immediately met with a custody situation with an adversarial situation. They're handcuffed immediately. There just doesn't seem to be any account taken for what these people have most likely gone through, especially when they start to say that they're afraid to go back to their countries, that they want to apply for political asylum. But they're not met with any type of a system that educates them about how they can apply for political asylum here and making it easier for them. What they're met with is really a policing agency that is designed to send people back, to get people out of here who are arriving without documents. That's a very big problem.

Secondly is, obviously, keeping people in custody, in detention, while their claims are being processed, is a terrible thing especially to people who again have most likely been in situations in their home country where they have been detained and tortured. So detention is not the best thing for these people to say the least. It's a terrible thing for them. There are ways that can be changed. There are ways of keeping people, not necessarily letting everybody out that comes in. If they don't have a place to go, if they don't have family to go to, if they don't have friends, there can be housing situations that are set up where they can come and go with permission at the very least. I think that there is a tremendous amount of room for improvement over the system that is in place right now.

BAY WINDOW: The INS director says that asylum seekers are not housed with regular prison populations. He said that they're housed with people who are administratively prepared to leave. They've served their sentences; they're getting ready to walk out the door. Is that your experience in Khaled's case?

RUSTY SCHWARTZ: No. That's absolutely not true. Khaled is at the Marin County Jail. He is in the jail mixed in with the general prison population. There is absolutely no accommodation made for INS cases, for asylum seekers in that jail. In no way is he treated any differently.

BAY WINDOW: The INS director believes that we're protecting the general population from people who are unknown to us and who could do us harm. Do you have a response to that?

RUSTY SCHWARTZ: Yes. I think it's entirely true that asylum seekers are treated like criminals. There's no question they are. When they're immediately handcuffed and shackled and brought to jails and detention centers, that is what's going on. They don't have to go to that extreme with people. They can find out who people are rather quickly. Identity doesn't seem to be a major issue. You can find out who somebody is within a few days, so maybe you have to keep them in detention and keep your eyes on them for a few days, but that's a far cry from the average detention, which is over one hundred days.

BAY WINDOW: The average detention is over one hundred days, according to whom?

RUSTY SCHWARTZ: That's published in Karen Musalo's study. It varies depending on the jurisdiction. Khaled will have been in detention for one hundred twenty, by the time he gets out.

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