ICE Misled A Federal Court About Why Iraqi Detainees Couldn’t Be Sent Home, Documents Show

The misrepresentation kept the Iraqis in detention long after they might have been released.

Documents unsealed in a federal court in Michigan this week show that ICE officials repeatedly misled the court about the status of Iraqi detainees, insisting that it had an agreement with the Iraqi government to repatriate them when it appears that it did not.

The apparently misleading claims allowed ICE to keep the Iraqis in detention months longer than would normally have been permitted, the ACLU of Michigan claims.

The issue is the latest example of what advocates say is the Trump administration’s willingness to offer misleading information as it tries to restrict immigration.

The case revolves around the June 2017 arrests of around 1,400 Iraqis whom ICE had targeted for removal, most for overstaying their visas or being convicted of crimes. The arrests came weeks after Iraq had agreed to take back a small number of its citizens in exchange for being taken off the Trump administration’s travel ban list.

But that agreement did not extend to all Iraqis or alter the Iraqi government’s long-standing policy of refusing involuntary repatriations, a fact the ACLU claims the government tried to hide from US District Court Judge Mark Goldsmith.

At one point, ICE even told Goldsmith that it was his order that had stopped a repatriation flight when in fact Iraq had refused to accept the flight.

On Wednesday, the ACLU of Michigan is expected to argue that Goldsmith should order the remaining detained Iraqis — about 100 — released and impose sanctions on ICE officials for their misrepresentations.

“The cost of [the government’s] misconduct here is measured in the pain it inflicted on [the Iraqi immigrants] — in separated families, in months of human life spent unlawfully behind bars,” the ACLU attorneys wrote in their filing to the court requesting the sanctions.

The ACLU originally had asked Goldsmith to block the repatriations because many of the detainees would face persecution in their home country. Goldsmith agreed, finding on June 26 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 affiliations.

The documents reveal, however, the frantic efforts ICE officials went to to persuade Iraq to take the detained Iraqis back. At one point, according to the documents, ICE director Thomas Homan called the Iraqi ambassador to the US, Fareed Yasseen, and implored him to accept the flight. Yasseen emailed Homan his rejection on June 26, 2017.

“As things stand, we will not be able to receive the returnees on the date mentioned (time too short to guarantee receipt of PM’s clearance or to arrange for the logistics required for such a large number of returnees),” Yasseen wrote.

ICE officials were so frustrated with Iraq that on July 19, 2017, they drafted a recommendation to enact visa sanctions against the country.

“Despite expending significant resources and exhausting other available means to obtain cooperation, ICE has been unsuccessful in securing cooperation from the Government of Iraq in the acceptance of its nationals subject to final orders of removal and has determined that implementing visa sanctions pursuant to section 243(d) of the Immigration and Nationality Act (INA) is the only remaining avenue available to secure cooperation,” the draft memo, which was included in the unsealed documents, read.

Still, officials continued to insist in court that Iraq would take the detainees back. On July 20, 2017, the government cited an ICE official’s declaration that “Iraq has agreed ... to the timely return of its nationals that are subject to final orders of removal” in opposing an ACLU motion that the court issue a preliminary injunction blocking the repatriations.

The court issued the order four days later. It remains in effect.

In a response to the ACLU's claims, the government stated in filings this week that there are documents that show that Iraq was willing to take back all of the individuals ordered removed from the country, that steps were in place to get the Iraqi immigrants back before the court ordered blocks, and that they believe all of the individuals will be approved for flights there.

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.

The ACLU 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.

“More than 100 human beings remain behind bars as a direct result of the government’s misconduct. They should be released, the record cleansed of the government’s falsehoods, and Petitioners reimbursed for the many months of work it has taken to uncover the truth,” the ACLU said in its filing Tuesday. “Respondents may believe that they can violate this Court’s orders, disregard the Court Rules, and dissemble without consequence. The Court should make clear that they cannot.”

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