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A SPECIAL SECTION: Haiti, Since the January 12, 2010 Fierce Earthquake
The Mattapan/Greater Boston Technology Learning Center Charity Banquet

 Posted Tuesday, July 6, 2010                 

Haitian Found Not Guilty of Terrorism Is Not Free, Either  
 
By JOEL MILLMAN
Wall Street Journal Writer
                                                    
NORTH MIAMI, Fla.-”Four years after the U.S. government accused Lyglenson Lemorin of plotting terrorist acts, and two and a half years after a jury found him not guilty, the 35-year-old Haitian remains in jail, with no idea how long he will be held.

Despite Mr. Lemorin's 2007 acquittal, Immigration and Customs Enforcement officials still consider him a national-security risk, essentially because he knew the co-defendants in his own case. After Mr. Lemorin's trial, an immigration judge agreed, ruling that he had provided "material support" to terrorists by having worked at the construction business of a co-defendant who was convicted of conspiracy and imprisoned.

The government intended to send Mr. Lemorin (leh-moh-REEN) back to Haiti after his appeal was rejected in December. Immigration judges have wide discretion to remove people from the U.S., including permanent residents such as Mr. Lemorin. Grounds of "moral turpitude" can cover anything from committing minor crimes to-as in this case-associating with undesirable people.

But that plan was stymied by the January earthquake that devastated that country and led the U.S. government to offer Temporary Protected Status to Haitians here. About 225,000 people are currently eligible for that designation, temporarily preventing the government from relocating them to countries in distress from civil strife or natural disaster, regardless of their legal status. More than 50,000, including
Mr. Lemorin, have applied.

Now Mr. Lemorin's lawyer Rhonda Gelfman has petitioned immigration authorities to release her client on the grounds that the only reason they are detaining him is to remove him-and that under TPS they couldn't.

"There are two conditions Mr. Lemorin qualifies under" for release, Ms. Gelfman said. "He's a Haitian, and he's never been convicted of a crime."

In what has become a common tactic in terrorism cases, immigration courts detain defendants acquitted on criminal charges, usually relying on the same evidence, legal experts say. Immigration courts treat these as civil cases in which "there is a lower burden of proof," said Charles Kuck, another lawyer representing Mr. Lemorin, in an appeal of the removal order to the 11th U.S. Circuit Court of Appeals. Immigrants face what defense attorneys call "de facto double jeopardy" when they are detained after acquittal, Mr. Kuck said.

Another of Mr. Kuck's clients, an Egyptian-born university student named Youssef Megahed, was held for more than a year after a Tampa, Fla., jury acquitted him of possession of explosives in 2008. He ultimately was released and now is attempting to become a naturalized U.S. citizen.

In still another case, a Saudi man named Sami al-Hussayen was acquitted in 2004, in Idaho, of charges that a Muslim charity's website he worked on ran coded, pro-terrorism messages. He was held for 15 months before he accepted a plea bargain and returned to Saudi Arabia.

Mr. Kuck sees the earthquake playing a role apart from whether Mr. Lemorin qualifies for TPS. His argument: Haitian authorities have suspended the reception of returned immigrants since the crisis, forcing U.S. jails to hold deportees. He plans to argue that his client's long detention should end unless U.S. officials can demonstrate that Mr. Lemorin poses a security risk to the community.

Federal authorities declined to comment on Mr. Lemorin's case or his TPS application, citing privacy concerns. Nicole Navas, spokeswoman for the Miami office of ICE, would only confirm that Mr. Lemorin remains in the immigration agency's custody.

Mr. Lemorin, who emigrated to Florida with his mother as a boy and who holds a permanent-resident card, was one of seven men from Miami's Liberty City neighborhood charged in a July 2006 case brought against mainly Haitian and African-American suspects who had joined a community-renewal organization. Federal officials characterized the group as a terrorist movement that had pledged loyalty to al Qaeda after meeting with two men from Yemen and Lebanon. At the time, Attorney General Alberto Gonzales called the arrests a breakthrough against home-grown conspiracies, in what came to be called the Liberty City Seven case. He asserted that the suspects had planned to destroy Chicago's Sears Tower and launch jihad inside the U.S.

But even the government conceded there was little clear evidence that an attack on the skyscraper was in the works, according to evidence presented at trial. Poorly educated and practically destitute, the defendants didn't seem to have the means to engage in jihad, or to train with weapons or explosives, court records show.

Defense attorneys argued that the principal acts of the alleged conspiracy-swearing a loyalty oath to al Qaeda and videotaping federal buildings in Miami as future targets-occurred at the behest of the two Arab witnesses, who later were identified in court as FBI informants.

Jurors accepted the defense that Mr. Lemorin had moved to Atlanta to distance himself from the group rather than to start an al Qaeda cell, as the government alleged.

Narseal Batiste, the group's leader, testified that although Mr. Lemorin did swear loyalty to al Qaeda, he did so only because he and his co-defendants thought they were scamming the two Arabs, who had promised to give $50,000 to Mr. Batiste's community program.

Jurors were unable to reach a verdict on the six defendants who remained after Mr. Lemorin's acquittal, and who were tried jointly, forcing a mistrial. In a 2008 retrial, jurors again failed to reach a verdict. About a year ago, jurors convicted five members of the group, including Mr. Batiste, Mr. Lemorin's former employer, who received prison sentences ranging from four to 13 years.

The sixth, a U.S. citizen named Naudimar Herrera, was, like Mr. Lemorin, acquitted. Mr. Herrera is the only member of the original seven defendants not in jail today. Mr. Lemorin continued to languish in jail.

As Mr. Lemorin's attorneys prepare their arguments, Mr. Kuck is skeptical of Ms. Gelfman's attempt to spring his client under TPS.

"I'm a big fan of Don Quixote," he said, "but this argument goes way beyond quixotic." Ms. Gelfman concedes that her strategy is a long shot. Neither thinks the approach will hurt their client. Even if the TPS gambit fails, Mr. Kuck is convinced a district court will soon grant Mr. Lemorin conditional release, perhaps involving an electronic monitor on his ankle, on other grounds.

The reason is simple, he said: "They can't send him home because of the earthquake, and they can't hold him forever."

Write to Joel Millman at joel.millman@wsj.com

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