ICE officials lied when they said that Iraq would take back more than 1,000 citizens of the country that had been ordered deported from the US, including dozens of people who have been detained for months, according to ACLU of Michigan filings in a federal case challenging the removal of Iraqis throughout the country.

The organization cited redacted information in federal court filings in Detroit Wednesday calling for more than 100 Iraqis who have been detained by ICE be released, for the court to sanction the agency for its misrepresentations, and for the secret documents to be made public.

Back in June 2017, the ACLU successfully got US District Judge Mark Goldsmith to block the deportation of around 1,400 Iraqis who had been targeted for removal, most for overstaying their visas or being convicted of crimes, after Iraq agreed to take back certain citizens in exchange for being taken off the Trump administration’s travel ban list.

Hundreds of these Iraqis were arrested in June throughout the country, mainly in Michigan. Goldsmith found that the Iraqis, many of whom are from religious minorities, would face torture or death based on their residence in the US, their publicized criminal records, or their religious affiliation.

In its filings, the ACLU claims that ICE’s declarations that Iraq had agreed to take all of them back were false. The Iraqi government has long had a policy of not accepting those who were being repatriated involuntarily to the country.

The executive order striking Iraq from the travel ban list cites Iraq’s willingness to return those Iraqis who have final orders of deportation but ICE officials ran into complications getting Iraq to take those who did not voluntarily want to go back, according to the ACLU.

In fact, the ACLU claims that ICE officials were so frustrated by Iraq’s unwillingness to take back those who did not voluntarily agree to be deported that it sought sanctions in July 2017 that would restrict certain types of visas given to Iraqi nationals.

“The government has fought for fourteen months to hide the truth,” said Margo Schlanger, a professor at the University of Michigan Law School and an attorney assisting the ACLU with the case, in a statement. “We’ve finally gotten the documents, and it turns out that what the government told the court is untrue. We hope the court will allow us to share the truth with the detainees, their families, and the public, all of whom deserve to know what is really happening in this case.”

ICE declined to comment on the filings because the case was ongoing.

Meanwhile, the ACLU pointed to people like Firas Nissan, who has been in the US for 17 years after fleeing Iraq because he had been threatened and locked up there. Nissan missed an asylum hearing in 2004 because of an illness and was ordered deported but was still able to live in the country by agreeing to check in with ICE officials for 13 years, the ACLU said.

Then, in June 2017, he was arrested by ICE officers and has been jailed ever since, one of the 110 Iraqis in detention, according to the ACLU.

“He is locked in solitary confinement 21 hours a day, is not receiving needed medical care, can rarely see his family, and has not been able to provide for them, though he was previously the family’s breadwinner,” attorneys with the ACLU wrote in their filing calling for his and others’ release.

The ACLU, citing the redacted information, believes that Nissan and the rest of the group should be released because prolonged detention is unconstitutional when deportation is unlikely. ICE, the group said, has argued that the detainees should remain in custody because they can be taken to Iraq via a charter flight if the federal injunction is lifted.

ICE has even struggled with deporting the small number of individuals who had agreed to be sent back to Iraq. The agency has only deported 17 of the 37 Iraqis who agreed to be deported, according to the ACLU.

“It is appalling that ICE wants to lock these people up and throw away the key, and even more appalling that ICE misled the court in order to do so,” said Miriam Aukerman, a senior staff attorney with the ACLU of Michigan, in a statement. “ICE’s dishonesty is the reason the detainees are behind bars, rather than home with their families.”

******************************************************

I remember that one of my DOJ colleagues who spent a good chunk of his career litigating immigration cases in court was a total stickler for accurate citations. He got very upset if there was so much as an error of a single digit in the page number of a “pinpoint citation.” I asked him about it.  He related how as a young DOJ attorney he once had been publicly chewed out by a Federal Judge for an inadvertent citation error. He never forgot the experience and the value that the Federal Courts put on honesty and the highest quality of work from DOJ Attorneys. And, as any of us who worked in the DOJ in the “old days” knew, an attorney representing the Government was responsible for exercising “due diligence” to verify the truth of any representations made on behalf of an “agency client.”

In this case, apparently the information on the true position of the Iraqi Government was eventually ferreted out by the ACLU from ICE records. Therefore, it also should have been available to the DOJ attorneys representing the DHS. I guess that things have changed in both the DOJ and in the Federal Judges’ expectations for attorneys representing the Government and their agency clients.

PROGRAM NOTE: I am among a group of former Government officials who filed an amicus brief in behalf of the plaintiffs in this case.

PWS

08-31-18