A federal judge ordered the United States government to provide bond hearings for nearly three hundred Iraqi nationals, who were detained by Immigration and Customs Enforcement (ICE) and have languished in jail for several months.
The government must release the detained Iraqi nationals by February 2, unless a bond hearing before an immigration judge was conducted and determined particular detainees are “flight risks.”
“The public interest requires preliminary relief,” Judge Mark Goldsmith declared. “Our nation has a long history of resisting unreasonable governmental restraints. In the present circumstances, allowing bond hearings for those who have been subjected to prolonged detention is in keeping with the core value of liberty our Constitution was designed to protect.”
“Our legal tradition rejects warehousing human beings while their legal rights are being determined, without an opportunity to persuade a judge that the norm of monitored freedom should be followed,” Goldsmith further stated
Most of the individuals detained received deportation orders for removal to Iraq years ago. The orders resulted from minor drug offenses to offenses like assault or arson.
The Iraqi nationals served sentences and were “released long ago, under orders of supervision because Iraq refused to accept repatriation.” They lived peacefully in communities under “orders of supervision” until the U.S. government rounded them up for detention.
According to Goldsmith, detention has “inflicted grave harm on numerous detainees for which there is no remedy at law. Some have lost businesses and jobs.”
Ali Al-Dilaimi said, “After June 11, 2017, my oil change business, which my wife used to help manage, had to close down.”
“I was forced to close my auto shop business and now face a real possibility of losing it forever because I cannot continue running it while I am detained and cannot afford to have someone else replace all of my duties,” Atheer Ali shared.
Usama Hamama’s son was to attend college, but detention meant the family could no longer put down the minimum deposit for tuition.
Medications that a doctor prescribed to Adel Shaba were not provided in jail. Qassim Hashem Al-Saedy said he was assaulted while in custody.
The government maintains Iraq has agreed to accept all the detainees for “class-wide repatriation,” but according to the judge, that remains an “open question.”
“The court cannot make a determination regarding whether Iraq will accept repatriation of the class,” Goldsmith wrote. John Schultz, a deputy assistant director for the Homeland Security Department’s removal management division, issued a declaration that did not “contain information regarding the framework of the government’s diplomatic agreement with Iraq.”
“When pressed at the hearing by the court regarding details of the agreement, counsel for the government was unsure whether there was any formal agreement that had been memorialized in writing.”
The American Civil Liberties Union represents the Iraqi nationals in prolonged detention.
“ICE’s position is that if you try to save your own life by asking the courts to protect you from deportation to a country where you face persecution, torture or death, ICE can lock you up for however long it wants,” stated Miriam Aukerman, senior staff attorney for the ACLU of Michigan. “This decision means that ICE can’t punish Mr. Hamama — or the hundreds of others like him — with jail time for fighting to stay in America with their families.
“The government cannot just lock people up and hold them indefinitely without reason. As the judge made clear, everyone who is put behind bars is entitled to their day in court,” Aukerman added.
Since June, according to Reuters, U.S. immigration enforcement officers detained approximately 300 Iraqi nationals with “final deportation orders.” About 1,400 Iraqis in the U.S. face such orders.
Back in July, Goldsmith temporarily blocked the deportation of Iraqi nationals, who claimed they face a “grisly fate” involving “persecution, torture, and senseless religious hatred” if they are deported back to Iraq.
Goldsmith found the government’s opposition to granting habeas rights to detainees to be “inconsistent with the Constitution’s command that the writ of habeas corpus—the fundamental guarantor of liberty—must not be suspended, except in the rare case of foreign invasion or domestic rebellion.”
Then, Goldsmith informed the government that the government was “armed with jurisdiction to act as a first responder to protect the writ of habeas corpus and the allied right to due process, by allowing an orderly filing for relief with the immigration courts before deportation, thereby assuring that those who might be subjected to grave harm and possible death are not cast out of this country before having their day in court.”
Yet, for about half of a year, the government took no steps to provide hearings and only now is the court ordering the government to provide due process to detainees.