Judge orders former Iraqi detainee returned to U.S.

Mark Hicks Sarah Rahal
The Detroit News
Three judges on the 9th U.S. Circuit Court of Appeals left in place a lower court’s order that requires the U.S. to stop using hotels in most situations to detain children unaccompanied by a parent.

A judge has ordered the return of a deported Iraqi detainee following a quixotic multi-country bid to find the man after the federal government realized it had mistakenly removed him.

The order filed Tuesday in U.S. District Court in Detroit sets a Jan. 24 deadline for the return of the former detainee, Muneer Subaihani.

“Respondents shall place Mr. Subaihani on an order of supervision once he arrives in the United States,” Judge Mark Goldsmith wrote.

The filing is the latest development in a class-action lawsuit the ACLU filed nearly two years ago to halt federal immigration officials from deporting more than 1,400 Iraqi nationals swept up in ICE raids in 2017.

The Iraqis were arrested across the country without warning and threatened with immediate deportation, though many came here as children and have lived and worked in the United States for decades, ACLU officials have said. More than 100 detainees were from Metro Detroit.

Goldsmith said Subaihani, who had been held in Georgia last year, was deported in violation of the judge's July 2017 preliminary injunction allowing a temporary halt of deportations.

Subaihani was placed on a plane by ICE for deportation to Iraq on Aug. 8. ICE did not report the deportation to the ACLU or court until nearly two weeks later and then could not verify what happened to him or locate him, said Miriam Aukerman of the ACLU of Michigan.

“He was covered by the court's order preventing removal and ICE removed him anyway,” Aukerman said. “It’s part of this repeating pattern that ICE thinks normal rules don’t apply to them, and there is a history in this litigation of ICE violating court orders. ICE will tell you it was a mistake, they didn’t intend to deport him, but they didn’t have the protection to keep him safe.”

ICE representatives were unavailable for comment Tuesday due to the government shutdown.

Subaihani arrived in the United States as a refugee in 1994 after his family was killed in Iraq, Aukerman said. He had been ordered removed in 2004 following a drug conviction in Tennessee, and was among the Iraqis whom ICE detained in 2017, court filings show. His lawyers filed motions to halt his removal and reopen proceedings with the U.S. Immigration Court, but a judge denied the bid; Subaihani did not appeal that decision, according to documents.

Staff from the Iraqi embassy interviewed him while he was detained in Georgia in May, and the Iraqi government issued travel documents for Subaihani on June 8. Two months later, after ICE provided transportation from Louisiana, he voluntarily flew out of New York unaccompanied "because he was not deemed to be a danger and due to his express willingness to return to Iraq,"  federal authorities wrote in a filing.

A timeline of events shows his trek from America to Iraq between Aug. 8 and 10. His itinerary took him to Morocco and Bahrain before reaching Iraq, court records show.

Within two weeks of the journey, immigration officials "discovered that Subaihani had been removed despite the fact that this court’s order first requires a stipulated order lifting the preliminary injunction before removal can be effectuated,” federal officials wrote.

ICE was unable to find Subaihani, who earlier "verbally expressed his desire to not fight his case," and the department did not hear back from his U.S. contacts, Richard Brooks, an assistant field director, said in a declaration. 

"ICE does not track or confirm the arrival of deported aliens to their country of citizenship, however to the best of my knowledge Subaihani is now in Iraq," Brooks wrote, adding that the department learned on Aug. 21 that his removal "had been made in error."

In filings last year, the ACLU blasted the government's efforts, claiming federal officials never notified them that Subaihani faced removal and "did not include him on a list of individuals whom they believe had exhausted their remedies under the injunction."

The advocacy group also criticized a deportation officer's attempts to find him merely by ending emails to Middle Eastern officials as well as calls to the airlines he was scheduled to travel on.

“…Respondents’ steps to discharge the obligations imposed by this court’s order have been only partial and woefully insufficient,” the ACLU wrote in a September filing.

“… Discovery shows how persistent and insistent ICE can be when it wants other countries to accept repatriation," the filing said. "ICE has numerous employees who have longstanding and deep contacts with embassy staff. And ICE almost certainly has avenues to pursue with air carriers beyond their customer service numbers. ICE should be no less diligent in trying to remedy its indefensible violation of this court’s order than it is in trying to effectuate removals.”

Aukerman said an ACLU investigator tracked Subaihani down in Iraq. The journey, she said, wasn't easy. 

"He was stuck in transit," Aukerman said. "Stuck in airports where people were trying to figure out what was going on with him ... ICE deported him without any real identification documents and as a result, it's been difficult to bring him back."

Subaihani has strong claims for immigration release, Aukerman said. 

"He was picked up on two previous pot possessions but has serious heart issues," she said. "He's been in and out of the hospital in Baghdad and doesn't have the medication he needs."

Aukerman said Subaihani is one of a handful of detainees that the ACLU said were coerced into signing legal paperwork in 2017 that would automatically send them back to Iraq.

"He was part of the group of people sent to Georgia that were forced into signing documents by ICE agents threatening them with statements that he was going to be in detention forever unless he signed the paper to be removed," Aukerman said. 

"We are pleased that the judge is requiring his return and holding ICE accountable for violating court orders," she added. "They have wronged this individual and this just shows them you’re not above the law and here there was an order saying they couldn’t remove individuals and did anyway. Luckily, he’s going to have the opportunity to pursue life in the U.S."

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

Jonathan Weinberg, an immigration law professor at Wayne State University in Detroit, said while Goldsmith’s original order has been reversed and is awaiting an appeal, his original order stands, and the government had to correct the issue.

“(Subaihani’s) situation will go back to as it was as if he was never deported and have his case ruled in Immigration Court like the rest,” Weinberg said. “The government can’t just go around violating court orders, so the court issued another order saying bring him back so he can get his due process as his (class-action lawsuit) members.