Appeals Court ruling puts in play Iraqi detainee release

Ashourina Slewo, right, of Madison Heights, holds the bullhorn for Linda Markos of Warren, as they protest in front of Detroit's federal courthouse earlier this year. Slewo's Iraqi-born father, Warda Slewo, was recently released on bond after being detained for nine months.

The U.S. Court of Appeals has ruled that a Detroit judge lacked the authority to stop the deportation of Iraqi nationals in 2017 and grant them bond hearings that resulted in the nationwide release of hundreds of detainees.

A three-judge panel from the 6th Circuit issued the 2-1 ruling Thursday afternoon after many Iraqi detainees already had been released after being swept up in immigration raids in 2017.

Most of the detainees were expected to have been released by Thursday, the deadline set by U.S. District Judge Mark Goldsmith in Detroit, who on Nov. 20 granted two motions filed by the American Civil Liberties Union of Michigan.

Thursday's ruling does not address Goldsmith's Nov. 20 order. The ruling has no immediate effect on the released detainees, said Miriam Aukerman of the ACLU of Michigan, and will not result in immediate detention of any Iraqis in the ACLU's lawsuit.

“Though we are disappointed that the majority failed to recognize the critical role courts play in protecting people who could be killed if deported," Aukerman said. "Today’s decision does not change the fact that over the past year and a half, hundreds of Iraqis have been able to present their cases before immigration judges, rather than being suddenly deported without a hearing to a county where they are in incredible danger."

"Everyone who is eligible for release is being released as of the end of the day today," she said. "There is basically a period of time for us to review the decision and make next steps."

The ruling is the latest development in Hamama v. Adducci, a nationwide class-action lawsuit filed in June 2017 on behalf of hundreds of Iraqis, who were arrested throughout the country without warning and threatened with immediate deportation though many came here as children and have lived and worked in the U.S. for decades, ACLU officials said.

In its 28-page ruling, written by 6th Circuit Judge Alice M. Batchelder, the panel said the ACLU's choice to file its motions before the district court in Detroit "was undoubtedly outside the norm for removal proceedings, over which immigration courts hold exclusive jurisdiction."

The opinion said the law is clear that the U.S. attorney general is the authority to execute removal orders.

"These orders are not subject to judicial review," said Batchelder, a President George H.W. Bush appointee.

The opinion also said the law "unambiguously strips federal courts of the authority to enter class-wide injunctive relief, as the district court did in this case."

The panel ordered Goldsmith's preliminary injunctions to be vacated for both the removal-based and the detention-based claims.

“Today, the Sixth Circuit correctly vacated two sweeping injunctions that had, for many months, severely undermined our immigration system," said Steven Stafford, U.S. Department of Justice spokesman. "Those injunctions had undercut the executive branch's authority and duty to detain and remove aliens — aliens who had been ordered removed from the United States long ago. Today's decision helps restore the law and promotes the proper functioning of our immigration system.”

Jonathan Weinberg, an immigration law professor at Wayne State University, said those already released on bond or under Goldsmith's order are clear until the ACLU takes its next steps. 

"Generally, Court of Appeals overturns don’t go into effect immediately," Weinberg said. "The ACLU has a chance to ask the court to rehear the case. They don't often take the time to rehear cases, but they might. The decision of the Sixth Circuit won't go into effect until the losing side is denied or if the time asking for a rehearing, about 45 days, has run out."

The case by the ACLU sought to end the detention of some 1,400 Iraqis nationally, including 114 initially gathered in Metro Detroit during the raids.

The raids followed President Donald Trump's executive order barring admission into the United States of nationals from seven countries, including Iraq. In March, Iraq was dropped from the list when a new policy was negotiated between Iraq and the United States.

The ACLU argued that if the detainees were repatriated to Iraq, they would face torture or death for their Christian faith or for having served in the U.S. military.

ICE began releasing the detainees on Sunday. The detainees were put under orders of supervision, requirements vary by detainee, the ACLU said.

A couple of the men held in detention centers around the country are expected to remain in custody while the government continues plans to remove them by the end of January, the ACLU said. 

“We are reviewing the decision and will continue fighting to protect our clients, many of whom were able to hug their children and families for the first time in a year and a half, after being released earlier this week,” Aukerman said.

In his Nov. 20 ruling, Goldsmith said that the federal government cannot indefinitely detain foreign nationals.

"The law is clear that the federal government cannot indefinitely detain foreign nationals while it seeks to repatriate them when there is no significant likelihood of repatriation in the reasonably foreseeable future."

Goldsmith ordered the detainees released within 30 days, acknowledging even in release they will likely face hardships.

"... They have been deprived of more than a year of their lives with their families and their communities," Goldsmith said in his ruling. "Additionally, it is doubtful any of them have their old jobs or businesses waiting for them after this long period of time. Even after their release ... (they) will have to start over to regain some measure of economic stability."

In April, federal attorneys said Goldsmith overstepped his jurisdiction and that the Iraqis could have challenged removal in immigration courts, and then to the federal appeals court.

“The district court just got that wrong as a matter of law,” said Justice Department attorney Scott Stewart at the time. He said the immigration courts have a “robust” and “thorough set of protections.”

Stewart was not immediately available for comment on Thursday's ruling.

In her dissent, 6th Circuit Judge Helene White wrote the ACLU attorneys presented Goldsmith with evidence that because detainees were likely to be killed or tortured if deported, their impending removals would be in violation of the Immigration and Nationality Act and the Convention Against Torture, and that without a stay, they would be deported before they could seek relief under these acts.

"The government did not contest this evidence, and the majority does not find fault with the district court’s findings that without a stay, deportations would commence immediately, with death, torture, and persecution probably resulting," White wrote.

White, a Democrat, originally nominated by President Bill Clinton but blocked by Senate Republicans, was later appointed by President George W. Bush.

Nathalie R. Asher, acting executive associate director for ICE Enforcement and Removal Operations, welcomed the decision Thursday, saying the decision vindicates ICE's efforts to "remove these aliens, many of whom had criminal convictions, to Iraq."

"These aliens had fully litigated their cases, receiving the due process required by statute and the Constitution, and the Court of Appeals was right to conclude that the lower court erred by temporarily barring ICE from removing these aliens and requiring that they receive bond hearings," Asher said in a statement.

"Decisions like that of the lower court put our communities at risk, and ICE will continue to work with DOJ to defend lawsuits like this one, which undermine our immigration laws and enforcement efforts. ICE is continuing to review this decision and determine appropriate next steps.”

Initially, Iraq was not going to accept deported detainees when Iraq was included in the travel ban. When Iraq eventually was removed from the ban by the Trump administration, Weinberg said, ICE attorneys said Iraq would accept them.

"Turns out later, it appears not exactly the case," he said. "They won't accept unwilling deportees," Weinberg said. 

"... There’s a rule of law. If you have someone in detention pending deportation and you know he’s not going to be deported, he must be released under supervision, which is what Goldsmith did," Weinberg said. "Even with appeal not in place, folks can’t be deported to nations who are not willing to take them."  

In October, the ACLU filed a petition for the full release and called for sanctions against ICE for repeated delays in providing documents to the court. The government's document review "has moved at a glacial pace," Goldsmith said, citing an "endless cycle of potential removals, but with dubious results."

The court issued a preliminary injunction in July 2017 to allow detainees to remain in the country; a second injunction was issued in January, holding that those "subject to prolonged detention are entitled to a bond hearing ... unless the government proffered individualized evidence that a detainee should not receive a hearing." 

The ACLU has accused ICE officers of telling detainees to sign documents saying they want to be sent back to Iraq instead of facing prosecution in the United States. More than 30 unwillingly signed.