Case of botched ICE flight to Somalia signals legal shift on deportations

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Thursday February 8, 2018

The U.S. government’s prospects for deporting 92 people it unsuccessfully tried to fly to Somalia in December are getting murkier.

What’s more, a legal fight over the passengers’ fates — many of whom are from Minnesota — joins a string of recent cases that could stake out a more muscular role for federal courts in blocking deportations. The government has countered that Congress stripped the courts of any say in deportation challenges.

 

But a Miami federal judge ruled he has the power to keep the 92 Somalis in the United States, and he appears poised to give them time to fight their removals. That’s the latest example of judges reasserting an authority to stay removals, particularly in cases where authorities come for immigrants long slated for deportation but allowed to stay because of conditions in their home country. Just last week, a judge in California blocked the deportations of Cambodians, including at least one from Minnesota, ordered back when that country refused to take deportees.

“It’s really important to make sure the courts have some check on what could be unfettered federal government power over deportation,” said Michele McKenzie of Minneapolis-based nonprofit The Advocates for Human Rights, which has helped with the Somalia case.

In court filings, the government has suggested these judicial decisions will spur a flurry of last-ditch, frivolous court bids to win extra time in the United States. It has noted that some immigrants involved in the recent cases, such as two-thirds of the passengers on the botched flight to Somalia, have criminal convictions, including for murder.

A failed mission

A chartered Immigration and Customs Enforcement (ICE) flight with the 92 Somalis made it to Senegal back in December. But according to a government account, logistical issues stranded the plane for 20 hours at a Dakar airport and led the agency to return the deportees to Florida.

Attorneys have said 28 of the passengers are from Minnesota. Some have lengthy criminal histories. Others, including a Rochester cardiovascular technician and an Owatonna police officer, built quiet lives after failed asylum claims years ago. ICE detained them amid a return to deporting immigrants to Somalia that began under the Obama administration and ramped up last year under President Donald Trump.

The Miami lawsuit alleges the detainees spent 40 hours sitting shackled on the plane and were struck, kicked, choked and disparaged by guards. Attorneys at the University of Minnesota’s Center for New Americans, the University of Miami and two other organizations argue the failed flight and international publicity surrounding it have made it more dangerous to return the deportees to Somalia. They asked the judge to block a do-over of the flight so the plaintiffs can file new cases in immigration court or with the Board of Immigration Appeals.

In January, attorneys also filed a complaint that said staff at a Florida detention center were abusive and denied plaintiffs enough access to lawyers and medical treatment.

ICE doesn’t comment on pending suits. But in court filings, officials denied the plaintiffs’ allegations, offering testimony from health care providers and saying the detention center segregated some after disorderly behavior, such as assaults on staff.

The government has argued the court has no jurisdiction in the case because the Real ID Act of 2005 placed deportation challenges in the hands of the immigration appeals board.

Judge Darrin Gayles ruled the case’s “extraordinary circumstances” give him limited jurisdiction to ensure due process for the plaintiffs, who might have new arguments for reopening their deportation cases.

Winning reprieves

Gayles will decide this month whether to continue blocking passengers’ deportations and for how long, but his order signaled he is open to giving the plaintiffs until they get a response on bids to reopen their cases.

The courts have also reclaimed a more active role in blocking deportations in recent cases involving Iraqi immigrants in the Detroit area and Indonesian Christians in New Hampshire. In late January, a federal judge in California stayed the deportations of about 90 Cambodian refugees detained nationwide. Linus Chan of the Center for New Americans said these cases are significant at a time of stepped-up enforcement. A district court in the Twin Cities also acted to keep several men off the December flight to Somalia.

The judges are saying you can’t just sit on these orders for five or 10 years and then deport people without giving them a chance to challenge their removals because so much has changed,” Chan said.

Jessica Vaughan of the Center for Immigration Studies, which advocates for restricting immigration, said the rulings concern her — the judges are not accountable if those with convictions reoffend during these reprieves — but she believes they will be reversed: “The appeals courts and the Supreme Court are going to get very busy with all this lawfare aimed at undermining enforcement of our immigration laws.”

Mila Koumpilova

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