Judge rules in Garcia's favour

Barry Alleyne,

Added 21 February 2013

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Raul Garcia is a winner. The Cuban yesterday won his case against the Government of Barbados and the Chief Immigration Officer, when a High Court judge ruled that his continued detention was unlawful. But Garcia isn’t free to walk the streets of Barbados just yet. Justice Margaret Reifer, after providing a 110-paragraph decision in the No 6 Supreme Court, informed Garcia’s legal team he would only be released from custody when lawyers and Immigration Department officials came up with a joint plan for the former drug dealer’s conditions of staying in the country, and who he would live with. The judge noted she would then have to consider the plan before endorsing it, and only then could he be released. “It’s a victory, but there is more work to be done,” Garcia’s lead attorney David Comissiong told the DAILY NATION after the judge’s decision. “I will be working on this immediately. I don’t want the other side to be dragging their feet on this.” Garcia, dressed in a rust-coloured polo shirt, beige pants, and brown shoes, was in a confident mood even before Justice Reifer’s decision, giving his legal team a salute after entering the courtroom. “Thank you,” he said softly to Comissiong after the 35-minute decision was read to the court.s After the case was adjourned, Garcia finally unclenched his hands from his knees, and hugs and kisses were in abundance, before he was escorted back to his detention house in Dalkieth, St Michael, by Immigration officials. The judge’s decision yesterday came exactly one year after Comissiong chose to represent Garcia in trying to prove the Immigration Department had no right to continue keeping him in custody if they could not effect his deportation to Cuba, or any other country willing to take him in. Justice Reifer agreed with the claimants, who had brought a case of habeas corpus in an attempt to earn Garcia his freedom after completing a 20-year sentence for drug trafficking, but not being allowed back to his native land of Cuba, or the United States, where he lived from ten years old. In making her decision, Justice Reifer said she had “rejected” the defendants’ submission that Garcia represented a threat to national security, society, or was a threat to abscond if freed. “It does not constitute a stand-alone reason for the continued detention of the claimant. It would be unduly diminished, and ultra vires in law,” Reifer said. The judge noted that based on evidence presented regarding Garcia’s exemplary behaviour as an inmate during his two decades of incarceration, the court was of the view that he would not present a threat to Barbadians on the outside. She also noted that under the Constitution of Barbados, personal freedom is safeguarded not only for Barbadian citizens, but aliens as well. “Detention, in these circumstances, is not without limitations. It is within the jurisdiction of this court, that deportation is pending, and that all steps have been taken to effect removal in a reasonable time. This court is now called upon to provide a very delicate balance.” The judge added that though the initial detention of Garcia was lawful in light of a deportation, a recent diplomatic note from the Cuban Government made it clear deportation back to his homeland was not close to occurring. She therefore ruled that the deportation order issued March 24, 2010, in Garcia’s name had been exhausted. “The court finds that a deportation to Cuba cannot be done in a reasonable time,” Justice Reifer said, also noting the Government had in fact tried everything it could to have Garcia removed from Barbados. The judge added that the court had to take into consideration, and weigh the possibility of Garcia returning to crime if not returned to a proper environment. “This court has the responsibility to ensure there is no risk to the public or to the claimant. “It is possible for the claimant to be released into the care of such individual or individuals as this court considers appropriate. In the determination of that fact, the Chief Immigration Officer shall first be heard by the court on the proposed arrangements and on the stability of the proposed caretaker, at a future hearing.” The judge also reserved a decision on a request by Comissiong to award costs to Garcia. She said she would be willing to rule on that after further submissions were made by the claimant and the Solicitor General’s Chambers. Comissiong revealed that an elderly couple in rural Barbados remained on standby to accept Garcia into their home when he was released. He reiterated that Garcia remained willing to report to the country’s Immigration Department, or police under any conditions agreed to by the Supreme Court, until he was eventually deported. The judge noted that Garcia, as an illegal immigrant, would not be able to seek employment, or access public funds.

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