Judge Mark Goldsmith
Judge Mark Goldsmith

Louis Finkelman

Detroit Jewish News Contributing Writer

This is a very special week for Michigan’s Chaldean community. Federal Judge Mark Goldsmith has ordered that by Dec. 20, the U.S. Immigration and Customs Enforcement (ICE) must release about 100 Iraqis currently held in immigration detention. Releases started yesterday and will continue. The affected Iraqis have been in detention for as long as 18 months, fighting deportation. Now they can continue that fight from home instead of jail.

How these people wound up in detention: On June 11, ICE conducted a nationwide mass round-up of Iraqi nationals. ICE took more than 200 people into detention facilities, most of them from the Metro Detroit area. Over succeeding months more than 350 Iraqis have been detained, while ICE sought to deport them.

The raids in June and thereafter targeted immigrants who have formal deportation orders against them (mostly because of earlier convictions), but who have been long-term U.S. residents. In theory, they could get deported to Iraq, except the Iraqi government has not generally accepted unwilling deportees.

ICE has taken about 350 of about 1,400 people who nationwide belong in this category: in theory, deportable, if Iraq would accept them; in practice, living peacefully in the U.S.

ICE began by threatening to deport the Iraqis immediately, without even giving them time to explain to the immigration courts why under current law and facts they could not lawfully be deported. But, in July 2017, a team of lawyers persuaded Goldsmith that U.S. law required a pause on deportations, so they could have enough time to seek relief.  The team next won an order in January 2018, allowing the Iraqis the chance to be released on bond, if they did not pose a public safety or flight risk.

Since their detention, some have won their immigration cases; many were released on bond, after being found not to pose a flight or public safety risk; a few have been deported; 115 remain in custody.

Margo Schlanger
Margo Schlanger Twitter

On Nov. 20, Goldsmith issued a third important ruling about the detentions. Margo Schlanger, a University of Michigan law professor on the legal team representing the detainees, explains the ruling: because the federal government has not demonstrated that Iraq is, in fact, willing to accept these unwilling deportees, the U.S. government was given 30 days to release anyone who has been held six months or more. That 30 days runs out on Thursday, Dec. 20.

ICE began releases today, Dec. 18, and is expected to release nearly 100 of the detainees: Nearly all of remaining individuals either have not yet reached six months in detention. (Individual technicalities are still being argued for another handful.)

“The government decided not to seek a stay pending appeal, which might have paused releases,” Schlanger explained. “So the government can still appeal, but if it does, the appeal will not at this point keep people in detention.”

When ICE made its initial raid last June, it apparently planned to deport the individuals to Iraq within the week. According to Schlanger, “ICE was readying airplanes for the flight.”

Nora Hanna and Nadine Yousif Kalasho, young lawyers in the Chaldean community, called for help from attorneys with the Michigan American Civil Liberty Union (ACLU). In turn, the Michigan ACLU brought in the national ACLU, attorneys in private practice and at local law schools. The resulting team is led by Miriam Aukerman of Michigan ACLU; Schlanger; Judy Rabinovitz of the national ACLU Immigrant Rights Project; and and Wendolyn Richard and Kimberly Scott, both at Miller Canfield.

The team called upon the courts to protect the detainees from instant deportation. They eventually won three preliminary injunctions, limiting the government’s actions.

On July 24, the first preliminary injunction by Goldsmith insisted the government could not deport the detainees so quickly. Each person had to have enough time to ask the immigration court to review the old deportation order.

Nadine Yousif Kalasho
Nadine Yousif Kalasho Detroit Jewish News

The government appealed and held most of the detainees. “Originally, all those detained were held without bond, essentially in indefinite imprisonment until deportation,” Kalasho said.

“These people have been kept away from their families, their jobs and even their attorneys,” Hanna said. “Detainees do not have the right to an attorney. If the family could not find the detainee, they had no way of making contact. Attorneys needed to find the detainees to initiate work on their behalf. Even when attorneys could find out which facility held the detainee, the facility could deny access on technical grounds or declare that the detainee had been moved when the attorney came in person.

In the very first chaotic days of detention, she said, “ICE did not even want to let anyone know where the detainees were held. The attorneys had to initiate a federal case to get the information released.”

Then the legal team won a second victory with its second preliminary injunction.

In January, Goldsmith held that those detainees who present no significant risk of flight or danger to the public, should have bond hearings and have the opportunity to return to life outside. The court rejected the government’s plan to hold the detainees in long-term detention without bond hearings.

The government appealed. The appellate court has not issued a ruling.

“Once bond was allowed, most of the detainees met bond,” Hanna said. “Sometimes doing so meant mortgaging their homes or taking on other painful debts. Many of these families were already in deep financial distress from losing the income of the principal family breadwinner or having to close their businesses. Some families were able to make bail with help from the community. Some families were unable to meet the bail, and their relative remains in custody.”

In constructing the case for the third preliminary injunction, the legal team invoked a Supreme Court ruling disallowing the indefinite detention of immigrants under order of deportation whom no country will accept. By this time, Goldsmith had allowed discovery, meaning ICE had to show the legal team evidence relevant to the claim that no country would accept these immigrants as deportees.

On Nov. 20, Goldsmith ruled the government release the detainees, based on 2001 Supreme Court case Zadvydas v. Davis, because the government appears not to have a prospect to deport most of the detainees; Iraq seems unwilling to accept them. Even those for whom Iraq has issued travel documents (formal papers that allow them to enter Iraq) have been waiting for many months.

According to Schlanger, Goldsmith further ruled that ICE lied and misrepresented the record,; and that ICE unreasonably delayed discovery, keeping people in detention while Iraq resists accepting them. Therefore, ICE’s current claims that Iraq is indeed willing to accept these deportees, are not credible

Goldstein’s ruling has some harsh words for ICE:

“Detention has inflicted grave harm on numerous detainees for which there is no remedy at law,” he said. “Families have been shattered … The harm to Petitioners, who are ostensibly not being punished for criminal activity, is intolerable and ongoing.

“Petitioners’ only crime is being caught between the U.S. and Iraq’s diplomatic tug-o-war over repatriation . . . The public interest overwhelmingly favors freedom over mass detention in these circumstances.”