“Give me your tired, your poor, Your huddled masses yearning to breathe free.” — Emma Lazarus
Four hundred and sixty-two. That’s how many days Mishkat Sarkar has been in America. That’s how many days he’s been in immigration detention, including the last 15 months in the U.S. Immigration and Customs Enforcement (ICE) Denver Contract Detention Facility in Aurora. If you’re reading this after Feb. 18, it’s been longer.
Sarkar left his home country of Bangladesh on Sept. 2, 2014 after experiencing months of physical and political threats by those who he says are members of the ruling Awami League political party. He crossed 17 borders to get to the U.S., traveling from South Asia to South America by plane, and the rest of the way by bus, taxi, boat and on foot. He crossed the U.S. border on Nov. 13, 2014, and immediately claimed asylum after which he was put in immigration detention where he has remained ever since.
I have spoken with Sarkar several times by phone over the past two months. His voice is often despondent, with apparent frustration and sadness about his recent life. He calls me (as I have no access to contact him) from the Aurora facility. ICE contracts with the publicly traded company, GEO Group, Inc., to run the for-profit private facility. The GEO Group receives approximately $160 of federal funds per day per detainee.
Sarkar is not alone. As of Feb. 8, there are 425 Bangladeshis being held in immigration detention across the country, according to ICE. Advocacy groups assert this number has been steadily increasing over the last two years due to continued political upheaval in Bangladesh. The asylum seekers are mainly members of the Bangladesh National Party (BNP), the second largest political party in the country. And they are principally Muslim, as 90 percent of Bangladesh’s population practices Islam.
But while more and more Bangladeshis have come to the U.S. seeking asylum, they are routinely being held in detention without parole until their cases can be heard in immigration court and more often than not, their asylum cases are being denied.
Although ICE insists these determinations are made on a “case-by-case” basis, the Department of Homeland Security (DHS) has released a memorandum stating that the agency classifies the BNP as an “undesignated terrorist organization” or a “tier III terrorist organization,” although the party is not listed on the U.S. Department of State designated foreign terrorist organizations list. However, human rights activists, immigration lawyers and even former U.S. diplomatic representatives question DHS’ terrorist designation for the BNP, stating that it does not fully appreciate or understand the political situation in Bangladesh or the climate these asylum seekers are fleeing.
Since the early 1990s, two main political parties — the Awami League and the BNP — have fought for control of the Bangladeshi parliament. Each party has governed the country for different time periods separated by stretches of caretaker governments or military control until the parties can agree on fair elections. The BNP was last in charge from 2001-2006, followed by a caretaker government and then a period of military control until the Awami League gained control of parliament in the most recent 2014 elections, which the BNP boycotted.
“In Bangladesh all power resides in the parliament. It’s a very unitary constitution,” says Jim Moriarty, the U.S. ambassador to Bangladesh from 2007-2012. “If you don’t control the parliament in Dhaka you don’t control anything in Bangladesh. Because of that, politics is viewed as a zero sum game for both parties. What happens is that when a party takes power the other party does everything it can to discredit the [ruling] party and, if possible, to force an early election so they can get back in power more quickly.”
Because of this political process, whichever party is not in power at any given time often calls for protests and strikes, Moriarty explains. More often than not these protests turn violent, regardless whether the Awami League or the BNP is calling for them.
“It’s something that happens in Bangladesh history, and it’s something that happens in other countries,” Moriarty says.
The most recent clashes between these two parties occurred around the January 2014 elections and are considered to be the most violent in the country’s history, with both the opposition BNP and ruling Awami League blaming the other party for the violence.
Sarkar joined the BNP in 2005 when he was a university student and the party was running the country. For a long time, he was not an active member, he says, and after graduating, he started a small social organization with a few friends, teaching kids who weren’t going to school how to read and write.
By 2013, Sarkar says Awami League members were threatening his business, trying to force him to switch parties. He refused. They broke into his office and attacked his friends and family, he says. Sarkar closed down the organization and started a small shop instead. He also became more involved in politics.
When the BNP refused to participate in the January 2014 elections over disagreements about election mechanisms, the Awami League once again gained power, and Sarkar says the BNP leaders asked him to recruit new members.
“So I think this is not a bad idea, I can help maybe,” he says. “So I talk to my people… I’m not a leader, I’m just helping.”
Sarkar says on May 1, 2014, his local BNP party office was burned while he was meeting with other members inside. “They put a gun on my head and said, ‘There is no other party [than the Awami League] that you can do anything with,’” he says.
Members of the group went to the police but were refused help. “Because in Bangladesh when you go to the police station and the first thing they asked is what political party are you with…” Sarkar says. “Because the government controls everything.”
He was attacked again on June 1, 2014 and then again on Aug. 8, when Awami League members ransacked his store, he says. They told him, “We give you a chance and you still never leave your party. We are going to kill you,” Sarkar recalls.
So he ran. He jumped in the river, escaped to his friend’s house and called his parents, who told him not to come home because they had already been there looking for him. His father went to the police, but was again refused help. So his father gathered his passport and documents and arranged for his son to leave the country.
Sarkar traveled from Bangladesh, through Qatar to Brazil and then Bolivia. There, one of his father’s friends helped him start his journey north. He went to Peru, and then traveled through Colombia, where his bag with his passport and all his documents were stolen on a crowded bus.
He walked through the jungles of Panama. He was held in immigration in Costa Rica for three days. He took a boat through Nicaragua and the rest of Central America before arriving in Mexico. He was held in Mexican immigration for 22 days, while they confirmed his identity by sending his paperwork to Washington D.C., he says. “I am not a terrorist. I’m not a criminal. I’m a Bangladeshi citizen. They confirmed,” he says. “Then they released me.”
He made his way north, and on Nov. 13, 2014, Sarkar crossed the U.S./Mexican border in El Paso. He immediately claimed political asylum after more than two months of travel. He finally felt safe in the country he often heard praised for its human rights record.
ICE officers interviewed him at the border and he tried his best to explain the situation back home. He was told they would hold him in detention until all his asylum paperwork came through. “Soon,” they said. That was 15 months ago.
Sarkar spent seven days in the detention center in Texas before being transferred to the El Paso County Jail, where he was housed in the same cell as inmates charged with violent crimes. He spent three weeks constantly being asked about selling drugs, killing people and raping women, he says.
“Mentally I have a lot of problems because I’m living with criminals in there, and I can’t sleep.” On Dec. 7, 2014, he was transferred to the Aurora facility.
“When I arrived in the detention center, I was waiting for my interview, but they said they cannot find translator so they didn’t take an interview,” Sarkar says. “They send my case to direct court.”
Sarkar filled out his own asylum paperwork and represented himself in the court proceedings. “I explained on my asylum form how I am a political victim and tortured by the main political party,” he says. He asked if they would release him on parole so he could gather evidence for his case and find an attorney. His request was denied.
Sarkar has been to immigration court a total of 13 times, he says. He tried to defend himself the best he could given his limited knowledge of the legal system here and the language barrier. On May 16, 2015, he appeared in court for the last time. This was the first time the government attorney argued the BNP is a terrorist organization and therefore Sarkar is not eligible for asylum based on the Immigration and Nationality Act.
Sarkar says he answered the judge’s question the best he could. He denied any terrorist or violent activity. He explained again the politics of his country. The judge said he would have a decision in 10 days.
Fifteen days later Sarkar received a written decision from the judge. “I look at my decision paper and see he believed everything I submit. Everything is credible. He believes I’ve been persecuted in Bangladesh, that I’ve been tortured. That if I go back, I can be tortured again,” he says. “The court believes everything but only they deny because they call [the BNP] a terrorist organization level 3. This is the reason they denied my asylum.”
Sarkar says he never knew his party was considered a terrorist organization. “This is a party three times they are in power in Bangladesh and when they are in power they help and have good relations with the United States to [combat] terrorism,” he says. “And how could we be a terrorist organization if we don’t believe [we are]?”
DHS defines an undesignated terrorist organization as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in a terrorist activity,” according to its website. In the case of the BNP, DHS has argued that the BNP’s past affiliation with groups who have since engaged in terrorist activities in Bangladesh is reason enough to give the party this tier III designation.
“When I was there, we definitely did not consider the BNP a terrorist organization,” says former ambassador Moriarty. “I have not heard anything from within the U.S. government that would lead me to believe that they have changed that. I’m not sure whose definition of terrorist organization is being used here. … And of course it’s a Muslim majority country. If you use the word terrorism in Bangladesh as opposed to political violence, maybe that plays a role to some degree.”
Moriarty continues to travel to Bangladesh in his new role as executive director for the Alliance of Bangladesh Workers Safety. In his travels, he has not heard of anyone linking the BNP to terrorist activities in the country, and he says the U.S. State Department continues to issue visas to high-ranking BNP officials.
“For me the disturbing thing is that if you use the standard of electoral or political violence as being equivalent to terrorism you would have to ban several of the major political parties in India, in Pakistan, in the Philippines, and I have not heard of that standard being applied in any of those cases. So what am I missing?”
Moriarty is not the only one asking this question. Immigration lawyers and advocates from more than a dozen organizations across the country submitted a letter to DHS in October 2015 asking the agency to reconsider the tier III terrorist designation status of the BNP.
“[DHS] is ignoring the context that’s on the ground in Bangladesh of how a lot of the political parties operate and how the political process operates,” says Munmeeth Soni, attorney with the Public Law Center in Southern California who is currently representing Sarkar in his appeal. “It’s very different from the orderly conduct that exists here on voting day. But it’s an expression of people’s power.”
In Soni’s estimation, a terrorist designation should be reserved for groups who “validly want to use and believe in using violence to achieve their aims,” she says, and not legitimate political parties.
But looking at it from DHS’ perspective, the designation could be an easy way to bar most of the Bangladeshi asylum seekers coming to the U.S., given the recent history of domestic terrorism that has caused many to fear Muslim immigrants. “I sort of get their approach to all of this, the arguments they are making,” Soni says. “It’s a perfect storm where you have domestic terrorism that’s happened here as well as in Europe that they are really able to capitalize on this. Bottom line, their role is to fight every person who tries to enter and who is trying to apply for admission so that when they can make an argument that effectively forecloses relief for a group of people who are showing up at our borders, in their minds, that’s their job.”
DHS’ main argument for the designation is the BNP’s ties to Bangladesh’s third largest political party, the hyper conservative Jamaat-e-Islami party, who the BNP had a coalition government with in the early 2000s. The Jamaat-ul-Mujahideen Bangladesh (JMB) terrorist organization branched off of the Jamaat-e-Islami party and claimed responsibility for simultaneously setting off 500 bombs throughout the country in 2005.
However, as the immigration advocacy groups argue in their letter, and Moriarty confirms, the ruling BNP government actually cracked down on the JMB in 2005 and 2006, arresting and prosecuting many JMB members. Moriarty confirms that the U.S. worked with the BNP when they were in power on anti-terrorism initiatives and that “the BNP government went after them (the JMB) very vigorously.”
Although Soni can understand the logic, the DHS’ arguments aren’t strong enough to stand up in court, she says. “What’s more problematic is that immigration judges aren’t pushing back on them (DHS). If immigration courts aren’t going to correct them where they are so obviously wrong, then we have a system where we don’t really have neutral adjudication of these claims.”
The Public Law Center along with other immigration advocacy groups including the American Civil Liberties Union (ACLU), National Immigration Project of the National Lawyer’s Guild and others also argue there is no evidence the BNP has had any affiliation with any terrorist groups and the party leaders routinely and publically denounce any use of violence. They sent the letter to leading officials at DHS, ICE, the Executive Office of Immigration Review (EOIR), which is part of the Department of Justice, as well as the Executive Office of the President. They have yet to be given a response.
The National Immigration Project has also developed a public practice advisory, which makes the arguments against DHS’ designation of the BNP for any asylum seeker to use.
“The obstacles facing immigrants are incredible in immigration court,” says Paromita Shah, associate director of the National Immigration Project of the National Lawyer’s Guild. “These people have to in essence go in front of an immigration judge and a prosecutor by themselves in immigration court in a language that they aren’t familiar and reading documents that they cannot read. … To be honest, immigration law is already more complicated than the tax code and yet they are supposed to understand all the procedural issues. Challenging whether the Bangladesh Nationalist Party is a tier III terrorist organization is a very complicated legal matter and they’re supposed to do that on their own?”
There are hundreds of other Bangladeshi appeal cases Shah and others are currently defending, arguing against the blanket use of the terrorist designation as reason enough to treat these asylum seekers differently than other groups of migrants.
“The broad brush is that none of these people had to be detained in the first place,” Shah says. “They should have been released. Many of these people had evidence of who they were and they had places to stay. … We don’t understand why these people were treated differently than other folks.”
On a blustery day in early January, I met with two other Bangladeshi asylum seekers in the small second story office of the DRUM South Asia Organizing Center in New York City, which advocates on behalf of South Asian immigrants. Jahed Ahmed and Abdullah Aljobayer each told me their immigration stories via a translator.
The stories are eerily similar to Sarkar’s despite the fact that none of the men knew each other previously. Ahmed wears a thick scarf and leaves his jacket on as we talk. He speaks with authority, despite being soft-spoken in nature. Aljobayer still wears a tracking anklet and has to appear at the Federal Plaza in downtown Manhattan about once a week to check in. At 21, he’s less confident when the conversation starts, answering my questions with short responses. But as the conversation goes on, he becomes increasingly animated.
A woman by the name of Kazi Fouzia translates for us. She is also from Bangladesh and has been in the U.S. for a decade, working as a community organizer at DRUM. Although she has no political affiliation back home, she has been accused of spreading propaganda against the Awami League and she says her family in Dhaka is often harassed. She currently fields 70 to 80 phone calls a day from Bangladeshis around the country in detention and facing deportation. After more than 11 months in detention, both Ahmed and Aljobayer are out on parole following a hunger strike at the El Paso Detention center in October.
Like Sarkar, Jahed Ahmed also joined the BNP in 2005. He says he joined because they built roads, hospitals and schools in his village. His local representative was Saifur Rahman, a key leader in the BNP who worked with the World Bank and other international financial institutions. “I was impressed by his leadership, and I think if I join BNP I would have lots of opportunity to contribute to social development,” Ahmed says.
He continued to work with the BNP even after their last term ended in 2006. In the country’s 2008 elections, he was working at a voting center when Awami League supporters beat him up so badly he couldn’t even vote that day. For the next several years Ahmed laid low and barely involved himself in politics.
But when the Awami League regained power in 2014, the BNP called for nationwide protests, and Ahmed joined the crowds in the streets. During the demonstration he witnessed the death of a good friend. “I brought him to the hospital, I was a witness in the case. That’s why they target me,” he says. “I was running a small business and they actually targeted me and my shop. They actually come one day and destroy my shop. That’s the reason why I have a lot of fear to stay in Bangladesh.”
Ahmed too paid a human trafficker and followed much of the same route through South America as Sarkar, also losing his passport and important documents when a trafficker hid him and other immigrants underneath a tarp without their luggage. He also crossed the border at El Paso, and was taken to the El Paso Processing Center, a nearby detention facility where he remained for 11 months.
He also argued his own asylum case, where he says it was very difficult to adequately explain his situation. “The judge gives me a really, really few moments to answer all the question. Sometimes a judge asks me a questions and only gives me 30 seconds to answer,” he says. “I know yes or no is not the answer. If they gave me one or two minutes I could explain the answer. But with 30 seconds it’s a problem. Yes is a problem, no is also a problem.”
Ahmed’s asylum case was denied, he says, with a three-line explanation. “BNP is a third tier terrorist organization. You are affiliated with BNP. So that is the reason why the judge decided to deny your case.”
Abdullah Aljobayer has also been denied asylum and is currently appealing his case. He joined the BNP simply because his entire family are registered with the political party. He was beaten three times by Awami League supporters, he says. “I denied to join their party so I feel scared and I flee my country.”
His parents were the ones who decided to send him to America.
“My father, my mother, even I see in the media on the news that the United States is a really good country that follows human rights, they support other oppressed people,” he says.
He followed a similar route through South America as Sarkar and Ahmed. When he reached the U.S. border, he debated between declaring himself and asking for asylum or trying to sneak into the country.
He asked himself what he would do visiting someone’s house. “When you arrive, you knock and ask to come in, you don’t just walk across the threshold,” he says.
So Aljobayer asked for asylum. He was also held at the El Paso facility, applied for asylum himself and like the others, was denied based on his affiliation with the BNP.
“After holding 11 months in detention, I lost hope,” he says. “How can I even explain detention life? When I call my parents in Bangladesh, they cry and I’m crying here. Every single time, I’m feeling that I’m not ever going to be able to see them again. I don’t feel like talking or playing games. I just wanted to stay in my barrack all the time and sleep and be alone. …
“When I came and they put me in detention it is the opposite side of America than I thought. I have no choice, I have no rights to say something, or get parole. People are treating me differently than others. It’s the exact opposite picture of America.”
It was at this point of depression and desperation that Aljobayer and approximately 50 other Bangladeshi asylum seekers being held in El Paso, including Ahmed, started a hunger strike.
After a few days of the hunger strike, ICE put in for 11 of the detainees to be transferred and Ahmed was part of the group. But when they got to the front gate of the detention facility, the ICE officers simply released them. It was the middle of the night in a strange country, in a strange city. The men pooled their resources and hired a taxi to take them to the nearby Muslim center, which was closed. They were able to contact relatives in New York who booked a hotel room for them.
In the morning they were connected with DRUM and eventually all 11 men moved to New York.
Aljobayer wasn’t so lucky. He remained in the El Paso facility for several more days. Eventually ICE brought in a local Bangladeshi consulate representative to negotiate with the hunger strikers — a Bangladeshi consulate representative who technically represents the Awami League government in the U.S.
The consulate representative came into the barracks and pleaded with the remaining hunger strikers to eat. At first, Aljobayer says, the representative was empathetic to their plight and appealed to their common language and culture. But as the day went on and the hunger strikers continued to refuse food, he became increasingly angry. Aljobayer started getting scared, thinking about the potential political repercussions.
“If consulate is very angry with us and he leaves, he will have all our information and ICE will deport us, and this is a Bangladeshi consulate and they can give ICE our travel documents and we will be sent home,” he says.
Eventually, the asylum seekers broke their hunger strike, the representative took photos of the men eating, which they published in a news release on the consulate website. Slowly, most of the hunger strikers were granted parole including Aljobayer, and many of them followed the previous group to New York. Queens to be exact, where there is a large South Asian community who have populated the area with restaurants, markets and businesses reminiscent of their home countries. The hunger strikers are appealing their denial of asylum and are awaiting decisions. But they are no longer in detention.
When Sarkar and the 11 other Bangladeshi asylum seekers being detained in Aurora heard about the hunger strike in El Paso, as well as other hunger strikes at 10 different detention facilities across the country, they decided to join at the end of November.
The first day of the hunger strike, Sarkar says ICE officers asked the group to explain the strike. “We explained how long we have been here but that we don’t know why we’ve been here that long,” he says. “We told them we came for protection. If they deport the people, then who takes the responsibility if the people go back and get killed by the political party? Who is going to take the responsibility?”
After they shared their frustrations, Sarkar was taken to solitary confinement, made to walk with his hands up, like a criminal. He says the florescent lights were never turned off and officers came by every 10 to 15 minutes banging on the doors.
After three of four days without food or sleep, Sarkar was taken to the medical unit. “All of these things make it… mentally I am not good,” he says. “I already go to psychotherapist one time but I cannot sleep all night. I am very much hopeless. Sometime my brain, my head isn’t working. I just sit down and think why did I come here for help? I should have gone somewhere else.”
Nothing has changed for Sarkar since the hunger strike. He is still in detention. He filed his appeal on June 7 and is still waiting to hear from the Board of Immigration Appeals. And his family continues to tell him he can’t return home without risking his life to Awami League supporters.
A loud cheer erupts behind Sarkar as he begins to describe the depression that often overcomes him. He explains someone from Ghana is being released today after eight months in detention. Sarkar does not join the others cheering.
He continues to describe his daily routine: 5 a.m. breakfast. 11 a.m. lunch. 5 p.m. dinner. In between meals he exercises or sits in front of the T.V., which is often on a Spanish channel he can’t understand. Maybe he’ll make some handicrafts to try and sell to buy extra food from the vending machine and make phone calls back home. And he’s also been given less and less work since the hunger strike ended.
The desperation in his voice grows as he talks about his family back home and his father’s declining health. Sarkar says he often cries together with his family on the phone, and they constantly ask him questions about his case that he does not have answers to.
But sometimes he’s so depressed he doesn’t even want to call his family. He often sits in his cell by himself, sleeping or trying to read the Koran in English.
He prays by himself most days but Muslims from different ethnicities gather together on Friday for prayer. They are not allowed to invite an Imam to visit.
On his better days, Sarkar talks about being released, about working with organizations to help people in the U.S. understand the political situation in Bangladesh, about speaking up for others still stuck in detention. He talks about working to help his family back home and living a peaceful life.
But soon the desperation returns, the hopelessness returns. He begins talking in circles around the concept of justice, wondering if he’ll ever understand what it means, wondering if such a thing actually exists. He often says, “I don’t know what I’m going to do” in closing our conversations.
But there is some hope.
In July 2015, a New Jersey Immigration judge ruled that the BNP was not a terrorist organization after reviewing the evidence herself in a case of a young Bangladeshi seeking asylum. The judge said the DHS claim that the political party is a terrorist organization is a “novel one.” She went on to say in her decision that “the record does not include any statement from an American governmental body suggesting that the BNP is a terrorist organization.”
And on Feb. 9, James R. Clapper, director of National Security, told the Senate Armed Services Committee that the Awami League’s “continuing efforts to undermine the political opposition in Bangladesh (the BNP) will probably provide openings for transnational terrorist groups to expand their presence in the country.”
He said that despite the Awami League’s insistence that recent attacks throughout the country were conducted by the BNP in an effort to undermine their authority, ISIS has actually claimed responsibility for up to 11 attacks. This has put the Awami League on the defense and given further credence to the arguments made by members of the BNP seeking asylum and their lawyers.
Given this, it remains unclear who is responsible for the tier III terrorist organization designation DHS has given the BNP, and no one from the agency has yet to respond to my repeated emails and calls.
What is clear is that young politically minded Bangladeshis are fleeing the violence of their country and coming to the U.S. for safety. In response, the U.S. government is treating them differently than other groups of migrants and accusing them of terrorism based on their country of origin, political affiliation and presumably their religion. At a time when conservatives are calling for a ban on all Muslim immigrants, and the Democrats, including President Obama, are saying that such a ban would conflict with the constitution and the character of America, it appears that within the Department of Homeland Security the conservative position may have already been implemented. And for that, I’m left wondering the same thing as Sarkar.
“I come here because I cannot have justice in my own country,” he says. “So I came here because I know here has the highest level of human rights, highest level of justice. I came here for help, but I cannot find any justice. I don’t know how long I need to look for justice.”
Mishkat Sarkar is a pseudonym.