Published in partnership with Shadowproof.
A federal district court in Detroit temporarily blocked the deportation of over 1,400 Iraqi nationals, who say they face a “grisly fate” involving “persecution, torture, and senseless religious hatred” if they are deported back to Iraq.
The government refused to acknowledge “extraordinary circumstances.” It transferred numerous detainees to various parts of the United States, “separating them from their lawyers and the families and communities” who could assist in legal efforts to challenge their deportation.
Judge Mark Goldsmith found the government’s opposition to be “inconsistent with the Constitution’s command that the writ of habeas corpus—the fundamental guarantor of liberty—must not be suspended, except in the rare case of foreign invasion or domestic rebellion.”
The court [PDF] is “armed with jurisdiction to act as a first responder to protect the writ of habeas corpus and the allied right to due process, by allowing an orderly filing for relief with the immigration courts before deportation, thereby assuring that those who might be subjected to grave harm and possible death are not cast out of this country before having their day in court.”
The American Civil Liberties Union chapter in Michigan, which filed the nationwide class action lawsuit on behalf of endangered Iraqis, hailed the ruling.
“This ruling continues to block the government from recklessly sending these individuals into harm’s way,” stated Judy Rabinovitz, deputy director of the ACLU’s Immigrants’ Rights Project. “The court’s action could literally save lives.”
Many of the Iraqis facing deportation have been in the U.S. for decades, according to the ACLU.
President Donald Trump’s administration cut a deal with the Iraqi government in March. Iraq was removed from the list of countries which were subject to the Muslim ban so long as it accepted deportees.
“On June 11, 2017,” as recounted in the decision, “agents from United States Immigration and Customs Enforcement [ICE] began arresting Detroit-based Iraqi nationals subject to final orders of removal. ICE’s operation ultimately resulted in the arrest of 114 Iraqi nationals who have since been transferred to federal facilities in Michigan, Ohio, Louisiana, and Arizona, where they await removal to Iraq.”
“This operation was part of a nationwide effort to remove Iraqi nationals who have been subject to longstanding final orders of removal, resulting from criminal convictions or overstaying visas. Outside of Detroit, approximately eighty-five Iraqi nationals from Tennessee, New Mexico, and California have been arrested and detained. Those individuals have since been transferred to facilities in Alabama, Louisiana, Tennessee, and Texas.”
Goldsmith added, “In total, 234 Iraqi nationals subject to final orders of removal have been arrested and are currently detained in 31 facilities across the country.” (Shadowproof’s Roqayah Chamseddine reported in June on the ICE raids.)
Many of the Iraqis challenging their potential deportation are Chaldean Christians, Kurds, or Sunni and Shiite Muslims. Orders for removal from the U.S., in several instances, were issued before the rise of the Islamic State.
Goldsmith noted, “Sectarian violence in Iraq is by no means limited to Christian minorities. Shiite Muslims and Yezidis have been subject to sexual slavery, abductions, and death at the hands of ISIS. ISIS has gone as far as to target these groups for genocide.”
The record also shows that militias linked to the Iraqi government target Sunni Muslims. The Popular Mobilization Forces, which consist of “mostly Shiite organizations”—some trained by the Iranian government—engage in “abductions and extrajudicial killings against Sunni Muslims.”
Goldsmith concluded the Iraqi nationals presented “compelling evidence that if they are removed prior to their filing and adjudication of motions to reopen, their ability to seek judicial review in the courts of appeals will be effectively foreclosed.”
“Their status as religious minorities places them at grave risk of torture and other forms of persecution at the hands of ISIS, other Sunni insurgencies, and the various Shi’a militias within the PMF.”
The government failed to convince the court that it would not deport Iraqi nationals to ISIS-controlled territory so there is no risk of harm. “The ever-shifting fortunes of war means that areas that are not currently under ISIS control could very well be captured by that group” after they are deported. (There are also threats from Sunni and Shi’a militias the Trump administration conveniently ignores.)
Notably, the court determined there was a record of “significant prejudice” against Iraqi nationals, as evidenced by interference with attorney-client communications, logistical pressures placed on the immigration bar, the cost of legal work, and the known difficulties that would occur if they were forced to make their claims of possible persecution on foreign soil.
Each Iraqi national “faces the risk of torture or death on the basis of residence in America and publicized criminal records; many will also face persecution as a result of a particular religious affiliation.”
“While cost and efficiency in administering the immigration system are not illegitimate governmental concerns, such interests pale to the point of evaporation when weighed against the potential lethal harm petitioners may suffer. A relatively brief delay in the removal process to assure that Petitioners have a meaningful opportunity to invoke the process Congress established is a small price to pay in service to the public interest in fundamental fairness.”
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