Appeals court rejects class-wide release of Iraqi detainees
Detroit — In a 2-to-1 decision, the 6th Circuit Court of Appeals said on Friday that a lower court was wrong to order a national class-wide release of Iraqis in December 2018, even though by then many of those affected had spent more than a year in detention.
Many of those affected are plaintiffs in Hamama v. Adducci, a class-action lawsuit brought by the ACLU of Michigan in 2017. The ACLU lawsuit was filed after more than 1,400 Iraqi nationals nationwide — 114 from Michigan — were swept up in 2017 raids.
The raids followed President Donald Trump's executive order barring admission into the United States of nationals from seven countries, including Iraq. Detainees were being held in correctional facilities while it was uncertain if Iraq would accept repatriated detainees at that time.
Some Iraqi nationals were released in December 2018 after years in detention based on the ruling by U.S. District Judge Mark Goldsmith, who said Immigration and Customs Enforcement could not indefinitely detain foreign nationals while seeking to deport them.
The district court has entered a trio of preliminary injunctions and the Court of Appeals vacated two of them in 2018.
In the appeal decided Friday, federal officials challenged the third injunction, which required the government to release all detainees stated in the class-action lawsuit no matter the statutory authority under which they were held.
"Those are the statutes covered by the jurisdictional bar, and the court’s injunction prevented those statutes from operating, whether with respect to mandatory or permissive detentions," the opinion states. "What was true the first time around remains true today."
The decision came just before the U.S. strike Friday that killed a top Iranian general and raised tension between the nations. ACLU attorney Miriam Aukerman said the situation is increasing anti-American sentiment in Iraq, making it even more dangerous for individuals to be deported to that country.
"It would be outrageous and deadly for ICE to deport people to Iraq under the current circumstances," Aukerman said Monday. "Precisely because the Iraqis ICE is trying to deport are American in every way but the color of their passport. They will be targeted as Americans if they are deported."
The appeals court ruling could go into effect on Feb. 24. Should it stand, ICE would be able to redetain Iraqis with final removal orders and Goldsmith will be unable to issue orders protecting all the class members together.
Meanwhile, cases can be fought individually through immigration court, although many individuals don't have court dates until January 2021 or 2022 and fear being deported before then.
Those most at-risk, Aukerman says, are those with final removal orders who have completed consulate interviews.
"Iraq has required consulate interviews, but with recent events, we don’t know if Iraq will accept any more deportees or accept interviews," she said. "I can't talk to what our strategy will be in the case, but I want (families) to know that our lawyers are looking at all of our options to protect from re-detention."
ICE officials did not respond for comment on the pending litigation.
Ashourina Slewo, whose father was detained for nine months and now awaits a hearing to determine his stay in January 2022, said fighting his case will be harder if he's re-detained.
"I fought tooth and nail to bring him home after he was granted bond," said Slewo of Madison Heights. "If he is redetained, I don't know what I'll do. I've only barely gotten on my feet again mentally and financially since the last time they detained him. It's costly and frankly, inhumane. He has complied with the bond order and done everything ICE has asked of him. Even before the raids, he was doing everything he had to and stayed out of trouble."
Aukerman is calling on ICE to keep families together.
"The State Department has evacuated all nonessential American personnel from Iraq because it is so dangerous, yet the administration is simultaneously trying to deport longstanding members of our community to Iraq, even though they face persecution, torture and death," Aukerman said. "A fair process takes time, which is why it is so critical that Congress pass the bipartisan bill to pause Iraqi deportations. Many Iraqis have won their immigration cases, but they need time to do so."
A bipartisan group of lawmakers hopes to help their cases with a bill that would grant Iraqi nationals relief from detainment and deportation while they await individual hearings before immigration judges. The bill would exclude those who pose a threat to national security. Democratic U.S. Rep. Andy Levin of Bloomfield Township and Republican Rep. John Moolenaar of Midland are spearheading the bill backed by 30 lawmakers across the country.
Michigan’s 9th District, represented by Levin, has the largest Iraqi-born community of any congressional district in the country, according to census data. Levin said they sent letters to Vice President Mike Pence and Secretary of State Mike Pompeo, and are working with the executive branch requesting intervention.
While Iraqi detainees do not remain in detention, lawyers say government officials are trying to deport them before their cases make it through the court system.
In July, five Iraqi refugees were detained inside the Detroit ICE Field Office on Jefferson Avenue after arriving for their routine appointments or to fix their tethers.
Jimmy Aldaoud, 41 of Shelby Township, who came to the U.S. as a 6-month-old from a refugee camp in Greece, was deported to Iraq after being sentenced on drug possession charges. Aldaoud, who they say was a bipolar schizophrenic and diabetic, was found dead due to lack of insulin a month later, the ACLU said.
Fearing the same fate, other detainees with final orders of removal began cutting their tethers in an act of protest.
"There are a lot of options here. It is not a final decision," Aukerman said. "Keep fighting."