How a United States District Court Circumvents Oversight of Unlawful Detention, NYU Law, 2016

• Locations: United States of America -> Alabama United States of America -> New York • Topics: Habeas Corpus, Immigration Law/Offenses, Detention - Generally

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THE WRIT OF

HABEAS
CORPUS:
How a United States District Court Circumvents Oversight of Unlawful Detention.

A report by the Immigrant Rights Clinic at New York University
School of Law in partnership with Families for Freedom

ABOUT US
Families for Freedom

NYU Immigrant Rights Clinic

Acknowledgements

Designers

Founded in September 2002, Families for
Freedom is a New York-based multi-ethnic human rights organization by and for
families facing and fighting deportation.
We are current and former detainees, deportees and their loved ones. We come
from dozens of countries, across continents. FFF seeks to repeal the laws that
are tearing apart our homes and neighborhoods; and to build the power of immigrant communities as communities
of color, to provide a guiding voice in the
growing movement for immigrant rights
as human rights. FFF has evolved into
an organizing center against deportation. We are source of support, education, and campaigns for directly affected
families and communities -- locally and
nationally.

The Immigrant Rights Clinic at New York
University School of Law is a leading institution in both local and national struggles for immigrant rights. Its students
engage in direct legal representation of
immigrants and community organizations in litigation at the agency, federal
court, and Supreme Court level, and in
immigrant rights campaigns at the local,
state, and national level.1

This report is dedicated to people who
were detained by U.S. Immigration and
Customs Enforcement and filed a habeas corpus petition in the U.S. courts.

Paulline Mallea
Paz Mallea

The authors would like to thank William
C. Anderson, Elise McCaffrey, Esq, Jessica Vosburgh, Esq, Families for Freedom
members and the people who shared
their stories with us for this report.

#familiesforhabeas

1 The name of the Law School is provided
solely for purposes of identification of the
clinic’s affiliation. The views expressed in this
report should not be regarded as the position
of the Law School.

Nina Sheth, student, Immigrant Rights
Clinic at New York University School of
Law
Rhiya Trivedi, student, Immigrant Rights
Clinic at New York University School of
Law
Report Supervisor
Nancy Morawetz
Professor of Clinical Law at
New York University School of Law
Copy Editor
Abraham Paulos
Executive Director Families for Freedom

Social Media Hashtag

Suggested Citation
Families for Freedom and New York University Immigrant Rights Clinic, The Writ
of Habeas Corpus: How a United States
District Court Circumvents Oversight of
Unlawful Detention
For More Information, Contact:
Abraham Paulos
Executive Director Families for Freedom
e: abraham@familiesforfreedom.org
p: 646.290.8720
@FamiliesFreedom

INTRODUCTION
In 2012, Families for Freedom started receiving an increase in phone calls and messages from detainees in Etowah County Detention Center (Etowah) in Gadsden,
Alabama in 2012. Immigrants detained at Etowah file their habeas corpus petitions
with the Northern District of Alabama courthouse in Birmingham, Alabama. They
do so to draw courts’ attention to the profound loss of liberty they are facing. The
number of detainees asking specifically about habeas corpus petitions and problems with their travel documents began to rise, and so Families for Freedom and
the Immigrant Rights Clinic at New York University School of Law partnered up to
investigate.
The writ of habeas corpus lies at the heart of society’s protection against the
illegal deprivation of liberty by the government. Habeas corpus enables individuals
to rattle their cages - to call on judges to use their power to provide a remedy if there
is no lawful basis for detention.1 The writ also exists to “continually [check] executive authority to imprison without process.”2 From at least the seventeenth century
onwards, judges have played a central role in protecting individuals from unlawful
detention by the state. As the concept of habeas evolved, it merged with the idea of
due process to form a “powerful current in the stream of constitutionalism.3 The writ
was most famously used in 1772 by Lord Mansfield to liberate a Jamaican slave
who was forcibly brought to the United Kingdom, paving a legal path to the abolition
of slavery.5 In Number 83 of the Federalist Papers, Alexander Hamilton framed the
writ as a remedy for “arbitrary punishments” and “judicial despotism.”6 The Judiciary
2 Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum.
L. Rev. 961, 969 (1998).
3 Brandon L. Garrett, Habeas Corpus and Due Process, 98 Cornell L. Rev. 47, 49 (2012).
4 Colin William Masters, On Proper Role of Federal Habeas Corpus in the War on Terrorism: An
Argument from History, 34 J. Legis. 190, 195 (2008).
5 Sommerset v. Stewart, Lofft 1, 98 Eng. Rep. 499 (K.B. 1772).
6 The Federalist No. 83 (Alexander Hamilton); Gerald L. Neuman, Habeas Corpus, Executive
Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 984 (1998).

Act of 1789 authorizes federal courts in the United States to grant a writ of habeas
corpus for detainees who are held “in custody in violation of the Constitution or laws
or treaties of the United States.”7 The Judiciary Act grants this power for detainees
regardless of their immigration status.
The U.S. law (28 U.S.C. §2243) that outlines the procedure for filing and adjudicating
habeas petitions acknowledges the grave liberty interests at stake. Once a habeas
petition has been filed, the court must issue an order requiring the person who has
custody over the detainee to provide a “true cause of the detention.”8 The response
must be filed within three days. If good cause is shown, the court can grant an
extension of up to 20 days. The maximum amount of time the person responsible
for the person in custody has to respond is 23 days. After receiving the response,
the court is required to schedule a hearing. Unless the habeas petition and response
raise only purely legal questions, the detainee has the right to be brought before the
judge to make his or her case.
For immigrant detainees the habeas corpus petition is crucial. Immigration detention was once the exception. Immigration violations are civil, not criminal offenses,
and enforcement corresponded accordingly. As the War on Drugs and mass incarceration took hold in the political consciousness of the 1980’s and 1990’s however,
incarceration became not only a primary instrument of criminal law enforcement,
but immigration law enforcement as well. Congress has authorized mandatory detention of immigrants with certain criminal convictions before they receive a final
order of removal and has made the detention of immigrants with final orders of
removal mandatory for a short period of time in order to effectuate their removal. This report focuses on immigrants detained at Etowah who have already been
ordered removed and have been languishing indefinitely in immigration detention
pending their removal.
The deprivation of liberty that detention precipitates cannot be underestimated. The
only legal instrument truly available to immigrant detainees who are awaiting
removal to another country, is one specific kind of legal petition that is at the core of
this report: the writ of habeas corpus.

7 I.N.S. v. St. Cyr, 533 U.S. 289, 302, 305 (2001).
8 28 USC §2243.

METHODOLOGY
The authors of this report first analyzed the records of habeas petitions and their ensuing adjudication were first analyzed through the Public Access to Court Electronic
Records system (PACER). PACER is an electronic public access service of United
States federal court documents, allowing users to obtain case and docket information from the United States district courts, among others. Remotely, the authors of
the report were able to view:

• Lists of all parties and participants in cases, including judges and attorneys
• A chronology of dates of case events entered in the case record, beginning
with the filing of the habeas petition and ending with the publishing of an
opinion by a judge
• The types of documents, motions, and supplements filed by detainees, government attorneys, and judges
This report’s authors quickly discovered that electronic access to habeas corpus
petitions filed with the Northern District of Alabama courthouse is extremely limited.
From a distance, the the authors could only access the names of individuals who
had filed habeas petitions and how many habeas petitions had been filed. The actual habeas petitions filed by immigrant detainees were not available for viewing, as
they are considered sensitive and therefore kept confidential under Federal Rule of
Civil Procedure 5.2(c)(2)(b). Thus some basic information such as the petitioner’s
country of origin, and the nature of their habeas claims was not accessible. In the
NDAL magistrate judges (judges whose work had been delegated to them by district
judges or statute) typically made recommendations on an immigrant’s habeas
petition, which were then summarily adopted by the district court judge. Under FRCP
5.2(c)(2)(b) however, magistrate judges’ opinions were also considered sensitive
and therefore kept confidential, and as a result could not be viewed remotely.
The only way to access documents or to figure out the outcome of habeas petitions
filed in the Northern District of Alabama was to travel to the courthouse in Birmingham and physically print out the documents. The report’s authors traveled to the
courthouse in Birmingham and the detention center in Etowah in order to obtain
physical copies of all habeas petitions filed in the past five years and to meet with

detainees. Documents were then shipped back to New York City, where they were
analyzed and summarized in this report. Thanks to the accompaniment of a local
immigration attorney, the authors were also able to visit several Families for Freedom members detained at Etowah. Information shared by those detainees and others has also been crucial to the shaping of this report.
The authors read through the entire case files for 243 habeas petitions filed in the
NDAL. Typically an individual case file consisted of a habeas petition including various exhibits, a government response to the habeas petition, a petitioner’s response
to the government’s filings and either a judicial decision on the habeas petition or a
motion by the government to dismiss the case as moot. These documents contained
significant qualitative data that helped the authors develop a better understanding
of what is actually happening with habeas petitions filed by immigrant detainees
from Etowah.
In addition to basic information such as name, Alien Registration Number, and the
dates of
various filings, data was collected on the following categories:

• Whether the petitioner had an attorney;
• The petitioner’s country of origin and immigration status;
• The number of extensions of filing deadlines granted to the government;
• The date the petitioner was first taken into ICE custody;
• The number of days between each filing;
• The main arguments that petitioners’ raised in their habeas petitions;
• Whether or not the petitioner received a POCR review;
• Any available information on the petitioner’s travel documents
• Whether the petitioner was removed or released prior to the adjudication
of the habeas and how much time between filing and removal or release.
After the first round of data was analyzed, the authors grouped the cases into a
series of qualitative, overlapping categories. The categories included issues like
government contradictions in their filings; inadequate POCR; attempts to deport
detainees with suspicious travel documents; and communications from embassies
denying the issuance of travel documents.

KEY FINDINGS
The aggregate data on habeas petitions filed by immigrants detained at Etowah Detention Center (Etowah) from 2010-2015 reveals allegations of shocking and alarming patterns of unlawful detention by Immigration Customs and Enforcement (ICE)
and deceit towards the detainees as well as the Northern District of Alabama federal
court. In light of such serious allegations, every single habeas petition filed by
detainees from Etowah requires robust judicial oversight. ICE’s Post-Order Custody
Review (POCR) process, the only internal oversight mechanism to evaluate the
lawfulness of an immigrant’s continued detention, appears to be inadequate, and
often intentionally misleading. When ICE claims they are having difficulty removing
individuals, they can merely label detainees as failing to comply with their deportation order which further prolongs the detention period. Although a 2007 internal
Department of Homeland Security (DHS) investigation shed light on ICE’s misconduct in applying the failing to comply label, the data from Etowah reveals that ICE
continues to engage in this abusive practice.
ICE routinely holds immigrants from countries to which they know they cannot be
deported, even when detained immigrants provide letters from their Consulate or
Embassy stating that travel documents will not be issued. What is perhaps even
more suspicious is when ICE has released all immigrants from a certain country
because they cannot secure travel documents except for one individual. This inconsistency, paired with allegations of fraud raises serious red flags that the Court in the
Northern District of Alabama has a duty to investigate.
Ultimately, careful review of hundreds of petitions raises a multitude of questions
about ICE’s behavior in lieu of the Court’s oversight. These are the very questions
courts should be asking and would be asking, were they to engage in the truly individualized inquiry with which they are tasked. Every question raised in every case
we will discuss in this report remains unanswered and leaves hundreds more people vulnerable to indefinite and prolonged detention. This will remain true until the
Northern District of Alabama takes seriously the liberty of immigrants detained at
Etowah and the irreversible, devastating consequences of their detention.

1.
Almost all (94.2%) of habeas corpus
petitions filed by immigrants detained
at Etowah County were filed without
a lawyer.

2.
Since 2010, the Northern District of
Alabama has not granted a single
habeas corpus petition.

3.
The only habeas corpus petitions the
Northern District of Alabama has
formally adjudicated and published
opinions for have been denials.

4.
Despite the factual disputes between
immigrant detainees and ICE raised in
every petition filed, the Court did not
hold a single hearing. Even in cases
where there were allegations that ICE
was attempting to deport people with
fraudulent foreign travel documents
or to countries where the person had
never been to, the Court failed to fulfill
its their obligations under the Habeas statute and inquire further into the
allegations.

5.
In the rare instances when the Northern District of Alabama has called for
a hearing to assess the legality of an
immigrant’s continued detention, ICE
removes or releases the detainee and
moves to dismiss the habeas petition
as moot, thereby circumventing judicial review and leaving the immigrant
with no adjudication of the claims that
prolonged detention was illegal. Those
released face re-detention without any
adjudication of claims that they cannot
be deported to the designated country.

6.
Almost all (98%) of the 243 habeas
corpus petitions filed between April
2010 and September 2015 analyzed in
this report were outright denied or dismissed in cookie cutter opinions. As a
result, there is no case law or elaboration of what a Zadvydas showing would
require - of what would constitute a
lack of reasonable foreseeability to a
detainee’s removal. Immigrant detainees, 94% of whom do not have lawyers,
are thus completely in the dark about
how frame their habeas petitions in
order to secure their freedom. Furthermore, there are no judicial decisions to
protect immigrants who are released on
orders of supervision from re-detention
without new cause.

7.
The habeas corpus challenges unlawful deprivation of liberty; therefore the
process is designed for expediency.
The Court, however, summarily granted
100% of all extensions sought by ICE
providing them with unreasonably long
periods to respond to a habeas corpus
petitions, further prolonging the detention of the immigrant.

Without the outside interventions of courts, ICE is completely unaccountable, free
to abuse its own internal review system for evaluating detention, removing people
to countries without valid entry documents, rendering them undocumented, and deporting people to countries that do not legally recognize them. When ICE skirts judicial review by releasing detainees who have filed habeas petitions, ICE prevents the
detainee from having a judicial adjudication of his past claim to use as a defense
and ICE has re-detained such individuals with no new cause.

RECOMMENDATIONS
The Etowah County Detention Center should not detain immigrants. We support the
shutting down of the immigrant detention center at Etowah.
Pending the closure we recommend the following;

The Court in the Northern District of
Alabama should order and hold evidentiary hearings in all cases where there
are factual disputes as is required by
the Habeas Corpus statute, immediately after the government has responded. Circumstances in which hearings
should be held include but are not
limited to:

The Court should only grant extensions to
the government when it has shown good
cause. Habeas corpus cases challenge
unlawful deprivation of liberty; therefore
it is crucial that courts expedite review of
the legality of the person’s ongoing detainment.

a. When there are factual disputes
regarding the likelihood of travel documents being issued;

The Court should require ICE to always
provide proof of valid travel documents
used to deport detainees. The Court
should also require ICE to list and provide
c. When a detainee alleges that ICE has proof as to the country to which detainees
procured fraudulent travel documents. were removed.
b. When ICE alleges that a detainee is
failing to comply;

4.
The Court should require ICE to provide
detailed information as to attempts to secure travel documents (embassy contact
attempts, letters, interviews, etc.).

5.
The Court should summarily grant habeas corpus petitions where detainees have
included proof that travel documents will
not be issued by their embassies, paying
particular attention when detainees have
been re-detained after previous release.
Under Zadvydas, the Court should view
proof that travel documents will not be
issued as evidence that removal is not
reasonably foreseeable.

6.
The Court should publish case law prohibiting ICE from submitting stock language
as evidence that a detainee’s removal is
reasonably foreseeable. The likelihood of
travel document issuance turns on highly individualized factors and the Court
should require specific evidence.The fact
that ICE has previously been able to remove other detainees to a country is not
sufficient evidence that ICE will be able to
remove a current detainee to that country.

THE COURT
THE SUPREME COURT OF THE UNITED STATES REQUIRES LIMITS
to how long a person can be detained after they have been ordered deported
Fifteen years ago the Supreme Court of the United States - the highest court in the
country - reminded federal courts of their constitutional duty to protect the liberty
of detained immigrants.9 In 1996, Congress had amended the immigration laws to
increase the use of immigration detention to hold immigrants who had been ordered
deported while their removal was pending.10 The consequences of the rise of incarceration for immigrants were extreme – detainees were deprived of their liberty, detained far from their families and communities, and held in many cases indefinitely
while the government attempted to secure an entry document for their deportation
to another country. The Supreme Court responded on June 28th, 2001, in Zadvydas
v. Davis – urging courts not to “[abdicate] their legal responsibility,” and providing
courts with vital criteria through which to judge the detention of immigrants while
the government is in theory attempting to secure documents for a detainee’s entry
into the receiving country. The release of this report marks the 15th anniversary of
the Supreme Court ruling and chronicles its legacy, in one detention center in
particular; Etowah County Detention Center in Gadsden, Alabama.
In Zadvydas, the Supreme Court recognized that detainees awaiting deportation
were disappearing into a legal black hole and that habeas petitions provided the only
path out. Prior to the Supreme Court decision, indefinite detention was routine.11

9 Zadvydas v. Davis, 533 U.S. 678, 680 (2001)
10 Faiza W. Sayed, Challenging Detention: Why Immigrant Detainees Receive Less Process Than
“Enemy Combatants” and Why They Deserve More, 111 Colum. L. Rev. 1833, 1836-37 (2011)
11 Section 241 of the INA governs the detention of immigrants with final orders of removal. Under the
statue, the government “shall remove” an immigrant within 90 days. There are a number of provisions in
the section that affect how the removal period is calculated and additionally, §241(6) states “Inadmissible or criminal aliens.-An alien ordered removed who is inadmissible under section 212 , removable under
section 237(a)(1)(C) ,237(a)(2) , or 237(a)(4) or who has been determined by the Attorney General to be a
risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).”

In response to the significant constitutional questions raised by the possibility of
indefinite detention, the Supreme Court reminded courts of their duty to take seriously the habeas petitions of detainees who had been ordered deported. The Court
instructed federal courts to ask whether a detainee’s removal was not reasonably
foreseeable, and therefore, indefinite. This question of reasonable foreseeability is
precisely the kind of factual issue that federal courts are supposed to investigate.
The Supreme Court understood that federal courts take into account the immigration-related expertise of immigration enforcement agencies when determining the
reasonable foreseeability of deportation, but warned courts not to abdicate their independent legal responsibility to review the lawfulness of an immigrant’s detention.
Before the Supreme Court got involved, the government already had 90 days to remove an immigrant who was detained. The Supreme Court, recognizing that securing an entry document for detainees often took longer (for reasons discussed
below), gave the government another 90 days before the detention would become
‘presumptively unreasonable.’ After 180 days, in other words, an immigrant could file
a habeas petition challenging his or her continued detention, and the government
would bear the burden of proving that the immigrant’s removal was reasonably foreseeable. If a judge was satisfied by the government’s showing, the judge could deny
the habeas corpus petition and allow the immigrant’s detention to continue. If the
immigrant’s removal was not reasonably foreseeable, the court instructed the court
to grant release.
Immigration and Customs Enforcement (ICE) is required to obtain valid travel documents from the government of the receiving country. While immigrants are required
to cooperate with ICE to whatever extent possible while they are detained, ICE is
ultimately responsible for following up with consulates and embassies to ensure
that the documents are valid and secured.12
These processes are, in theory, designed to “ensure that individuals are deported to
countries where they have recognized status,” upon arrival and to ensure compliance with foreign and international law. Travel documents to the receiving country
should thus be viewed as entry documents that grant the person access to rights
and services.13
The Supreme Court’s ruling in Zadvydas recognizes the need for oversight over the
process of securing travel documents, particularly when an immigrant has been

12 Families for Freedom, Smuggled into Exile: Immigration and Customs Enforcement’s Practice
of Deporting Non-citizens without Valid Travel Documents. 14 New York, NY: September 2015; U.S.
13 DROPMM, 16.

held in detention for longer than six months. The Supreme Court’s ruling in Zadvydas recognizes the need for oversight over the process of securing travel documents, particularly when an immigrant has been held in detention for longer than six
months.
THE COURT HAS ABDICATED ITS CONSTITUTIONAL RESPONSIBILITY
as the primary protector of individual liberty in Etowah
Judges in the Northern District of Alabama have abdicated their responsibility to
rigorously oversee the detention of people awaiting deportation. In Etowah, the overwhelming majority - 94.2% - of detainees who filed habeas petitions between 2010
and 2015 did not have a lawyer, only underscoring the need for meaningful engagement by the Court. The Court failed to adhere to the guidelines of the habeas corpus
statute – it provided ICE with unreasonably long periods to respond to habeas corpus
petitions, summarily granted every extension sought by ICE and never held a single
evidentiary hearing. The Court did not grant a single habeas corpus petition in the
five-year period analyzed in this report. In many cases, ICE removed, transferred or
released the individual from Etowah before the Court decided on the habeas corpus
petition, thereby circumventing judicial oversight of detention and denying detainees’ the right to be heard before a court. In other cases, the petitions were summarily
denied without any kind of hearing. The Court had numerous opportunities to fulfill
its constitutional duty. In reality, however, the courts have failed to intervene - to ask
questions about allegations of fraudulent removal attempts and travel documents
or to resolve factual disputes as to who is the source of delay and obstruction in
procuring travel documents. In failing to exercise rigorous judicial inquiry into immigrants’ habeas petitions, the Court is abdicating its constitutional responsibility: to
issue guidance on the meaning of the law. It is also leaving the immigrants who are
released with no protection from detention in any of ICE’s far-flung detention centers, and requiring a new round of habeas litigation. In this judicial vacuum, ICE has
ample opportunity to abuse its power and inflict harm on detainees - results that will
be explored in depth in the following two sections.
THE COURT HAS FAILED TO COMPLY WITH THE HABEAS LAW
As discussed in the proceeding section, under the habeas statute (28 U.S.C. §2243),
once a habeas petition has been filed, courts are required to quickly issue an order
to show cause directed at the person who has custody of the petitioner.14

14 28 USC §2243.

Despite the fact that the statute calls for a response within three days (and sets a
maximum of 23 days), in 100% of the cases filed in the last 5 years, the Court granted ICE thirty days to respond. This thirty-day period is longer than the maximum
amount of time allowed under the habeas statute, even when the government shows
good cause for an extension. Furthermore, the Court in the Northern District of Alabama granted every extension requested by ICE/DHS without any explanation or any
acknowledgement for the added detention that the petitioner faced as a result.
The Court in the Northern District of Alabama is not fulfilling its “legal responsibility
to review the lawfulness of an alien’s continued detention.” 15 By failing to adjudicate
habeas corpus petitions with the expediency required by the law, the Court prolongs
the deprivation of liberty faced by detainees. Despite the broad range of factual disputes present in the hundreds of habeas petitions filed between April 30, 2010 and
September 8, 2015, the Court only ordered evidentiary hearings in four cases. Not
a single one of these hearings was actually held and thus the Court did not hold
a single hearing during this five-year period. In failing to even schedule hearings
where factual disputes could be independently investigated, the Court effectively
deferred to ICE’s renditions of the facts and failed to allow people to exercise their
right to appear in court to advocate for their release. Even in cases where detainees
alleged that ICE was attempting to remove them with fraudulent travel documents
or to countries where the detainee had never previously set foot, the Court failed to
inquire further, as is their duty.
CASE STUDIES
Cesar arrived in the United States in November of 2012 as an asylum seeker from
Eritrea. After his application for asylum was denied, he was detained by ICE. Cesar
had no criminal convictions and had never served any time in prison. In Cesar’s
habeas corpus petition, he contested ICE’s allegations that he was failing to comply by detailing his personal attempts to secure a travel document from the Eritrean consulate, by making phone calls and supplying ICE with all of his documents.
His habeas corpus petition alleges that the Consulate informed him on April 15th,
2014 that they did not recognize him as a citizen of Eritrea, and that they would
not issue a travel document. His habeas corpus petition further alleges that ICE
informed him that the El Salvadorian consulate would take care of his travel documents. Cesar states clearly in his habeas corpus petition that he is obviously not
from El Salvador and should not be deported to that country.
Twenty-two days after Mr. Cesar filed his habeas corpus petition, the Court ordered the ICE to respond within twenty days. It did not order any specific Nine
days before a response was due, ICE requested an extension of time, which the

Court granted on the same day. Sixteen days later ICE released Cesar on an order of
supervision after a year and a half in detention, completely circumventing judicial
review. The Court never made findings on whether or not ICE was attempting to remove Cesar to El Salvador. Cesar was denied his right to present his case in Court,
remained vulnerable to re-detention at any moment and remained vulnerable to deportation to a country to which he has no connection.
ICE. In every case that was not mooted out, the Court found that the removal of detainees was foreseeable and therefore no one should be released. In most instances,
the Court simply waited for ICE to remove, transfer or temporarily release the
detainee; in rare cases, they published opinions articulating their denial. In one case,
where the detainee alleged that the travel documents ICE provided him were fraudulent, the Court published a rare opinion stating that “regardless of whether Mr. N’s
signature on the travel document is a forgery, Mr. N fails to state a claim for relief
under Zadvydas because he “has not provided evidence of a good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future.”
Without any guidance from the Court as to what an adequate showing of “not reasonably foreseeable” might look like, detainees – who are filing their habeas corpus
petitions without a lawyer or legal expertise - have no way of knowing whether their
claims are sufficiently stated. They have no notice as to what a Zadvydas showing
requires and now way to ensure that they are framing their claims appropriately for
their release. The Supreme Court explicitly cautioned against courts deferring to ICE’s
reasoning as truth - indeed, they equated mere acceptance of ICE’s rationale as an
abdication of authority.16
Thus in the context of what the Supreme Court demanded in 2001, the Northern District of Alabama’s behavior is a total abdication of their constitutional responsibility
as the primary protector of individual liberty interests in Etowah.

28 USC §2243.

15 Zadvydas v. Davis, 533 U.S. 678, 680 (2001)response in relation to the allegations about

ICE securing travel documents and the removal attempts to El Salvador.
16

Zadvydas v. Davis, 533 U.S. 678, 680 (2001) (“We recognize, as the Government points out, that
review must take appropriate account of the greater immigration-related expertise of the Executive
Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS
efforts to enforce this complex statute...But we believe that courts can take appropriate account of
such matters without abdicating their legal responsibility to review the lawfulness of an alien’s continued detention.”)

Machar was born in South Sudan in 1968 and came to the US as a refugee in
2001. He has a wife and six children who are all either Legal Permanent Residents
or U.S. Citizens. Machar first entered ICE detention in July 2007, but was released
on an order of supervision in May 2008. In June 2013, he was unexpectedly
re-detained. At the time of filing his habeas corpus petition, Machar had already
been detained in Etowah for almost a whole year. ICE’s argument for continuing
to detain Machar was based on his convictions prior to 2007 when he was first
detained, and therefore was considered a danger to the community. However, ICE
had previously released him indicating that despite the prior convictions they had
not found him to be a danger to the community.
ICE acknowledged that Machar was a citizen and native of South Sudan and they
discussed attempts to secure documents from the Consulate of South Sudan in
Washington D.C. In their final review dated January 16, 2015, ICE stated that they
were working with the government of Sudan to secure travel documents for his
removal. Machar expressed fear and concerns about being deported to Sudan, a
country that he is not from and that has been in armed conflict with South Sudan.
The Court never ordered a hearing and failed to acknowledge these fears about
being deported to the wrong country. The Court also did not require ICE to provide any more details about the process of securing travel documents from South
Sudan. After holding Machar in post-final order detention for a second time for
fourteen months, ICE released him on an order of supervision. ICE then moved to
dismiss Machar’s habeas petition as moot, thereby circumventing judicial inquiry
into whether ICE was attempting to deport Machar to the wrong country.
THE NORTHERN DISTRICT OF ALABAMA HAS FAILED
to Adhere to the Protections Established BY THE SUPREME COURT
The Supreme Court clearly states that detention while awaiting removal becomes
presumptively unreasonable after 180 days, and that courts must inquire into the
“reasonable foreseeability” of a detainee’s removal after this 180-day point. The
decision requires that courts imbue some substantive meaning to “reasonable
foreseeability”; that they, over time, generate standards as to what circumstances
lead to a detainee’s release under Zadvydas and what circumstances justify continued detention.
In the Northern District of Alabama, 89% of detainees who filed habeas petitions
were detained for over 250 days after their removal order and some were detained
as long as 1,122 days. Some of these cases include concrete proof that no travel
document would be forthcoming, and some involve deceit or potential fraud on the
part of ICE. Many habeas petitions filed in the NDAL were dismissed as moot without receiving any judicial review over the factual disputes between detainees and

ICE. In every case that was not mooted out, the Court found that the removal of detainees was foreseeable and therefore no one should be released. In most instances,
the Court simply waited for ICE to remove, transfer or temporarily release the detainee; in rare cases, they published opinions articulating their denial. In one case, where
the detainee alleged that the travel documents ICE provided him were fraudulent, the
Court published a rare opinion stating that “regardless of whether Mr. N’s signature
on the travel document is a forgery, Mr. N fails to state a claim for relief under Zadvydas because he “has not provided evidence of a good reason to believe that there is
no significant likelihood of removal in the reasonably foreseeable future.” Without any
guidance from the Court as to what an adequate showing of “not reasonably foreseeable” might look like, detainees – who are filing their habeas corpus petitions without
a lawyer or legal expertise - have no way of knowing whether their claims are sufficiently stated. They have no notice as to what a Zadvydas showing requires and now
way to ensure that they are framing their claims appropriately for their release.
The Supreme Court explicitly cautioned against courts deferring to ICE’s reasoning
as truth - indeed, they equated mere acceptance of ICE’s rationale as an abdication
of authority.[8] Thus in the context of what the Supreme Court demanded in 2001, the
Northern District of Alabama’s behavior is a total abdication of their constitutional
responsibility as the primary protector of individual liberty interests in Etowah.

both detainees and ECDC personnel, for example by feeding detainees insufficient
portions and rotten food, and understaffing the detention units.23

THE PRISON
THE ETOWAH COUNTY DETENTION CENTER AND WHY IT MATTERS
Etowah County Detention Center (Etowah) has been repeatedly denounced by human
rights advocates as one of the worst immigrant detention centers in the country.17 It
is an open secret that Etowah is ICE’s preferred location for warehousing immigrants
subject to prolonged detention. Etowah is a strategic location for several reasons:
its low cost to the federal government, its remote location within the jurisdiction of
a federal district court and appeals court that are highly likely to side with the government and against detainees, and the infamously poor conditions within the jail,
which lead many detainees to lose hope and give up on challenging their removal.
Etowah is a county jail in Gadsden, Alabama run by the Etowah County Sheriff’s
Department. Gadsden is a small, economically depressed city in northeastern Alabama, located about 60 miles northeast of Birmingham and 120 miles northwest of
Atlanta, the closest major urban center. Etowah County has had a contract known
as an intergovernmental service agreement, or IGSA, with the federal government to
house immigrant detainees in the jail since 1997.18 ICE detainees are housed in several dedicated units within the jail. Etowah currently holds approximately 300 male19
immigrant detainees who come from all over the U.S. and were born in countries all
over the world: Cameroon, Jamaica, Ethiopia, El Salvador, Kenya, Brazil, and many
more. A disproportionate share of Etowah detainees are stateless or from countries
where it is incredibly difficult to deport someone due to internal strife or a lack of a
repatriation treaty with the U.S. Many Etowah detainees are fighting their deportation out of fear of torture or persecution in their countries of origin.
For-profit, corporate-owned immigrant detention centers have garnered significant
negative attention in recent years,20 and right fully so. IGSA facilities like Etowah,
however, are subject to many of the same perverse profit incentives as for-profit
detention centers. Under the current contract, ICE pays the Etowah County Sheriff
one of the lowest per diem rates in the country: $45 per detainee per day,per day21
compared with the average national cost of $164 per day.22 Despite this already
extremely low price, advocates and detainees have routinely complained that the
Sheriff cuts corners in ways that further jeopardize the basic health and safety of

In fact, an obscure Alabama law permits sheriffs to personally pocket the savings
on such contracts.24 Etowah is located in a remote area of the country, two and a
half hours from Atlanta and hundreds or thousands of miles from most detainees’
families, home communities, and legal counsel (for the few detainees that actually
have counsel). This extreme isolation goes against ICE’s own policy of locating detention centers closer to metropolitan areas where detainees can access services
and family visitation.25 There is no Legal Orientation Program at Etowah, and the
vast majority of detainees do not have lawyers.26 The sense of desolation in Etowah

The IGSA contract can be viewed at http://www.documentcloud.org/documents/2157329etowah-county-al-usms-contract.html
18

ECDC previously housed both male and female detainees, but the women were transferred out
and the facility began detaining only men around the time of its near-closure in 2010-11. See infra
note 17 and accompanying text.

See, e.g., Bethany Carson and Eleana Diaz, “Payoff: How Congress Ensures Private Prison Profit
with an Immigrant Detention Quota, April 2015,
http://grassrootsleadership.org/sites/default/files/reports/quota_report_final_digital.pdf

See supra note 2 (IGSA contract for ECDC)

Detention Watch Network, “About the U.S. Detention and Deportation System,” http://www.de
tentionwatchnetwork.org/resources

See, e.g., Politicized Neglect, supra note 1; Expose & Close, supra note 1; CIVIC Complaint, supra
note 1

Adam Nossier, “As His Inmates Grew Thinner, a Sheriff’s Wallet Grew Fatter,” New York Times,
Jan. 8, 2009, http://www.nytimes.com/2009/01/09/us/09sheriff.html

Expose & Close, supra note 1 (citing Immigration Detention Overview and Recommendations,
Immigration and Customs Enforcement, October 6, 2009, http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf)

Written Statement of Carl Takei, ACLU National Prison Project, before the U.S. Commission on
Civil Rights, Hearing on The State of Civil Rights at Immigration Detention Facilities, January 30,
2015

is further exacerbated by the fact that little or no programming is available to de-

tainees.27 Visitation is only permitted by video monitor for a maximum of one half
hour, even when loved ones travel long distances to visit detainees. There is no privacy in the video visitation area, and monitors have malfunctioned, prohibiting visitation entirely.28 Etowah’s isolation has been a point of repeated criticism by human
rights advocates, including in a searing report by the Women’s Refugee Commission
(WRC).29 A statement by the ACLU National Prison Project to the U.S. Commission on
Civil Rights described Etowah as “one of the most notorious examples” of detention
facilities located far from detainees’ families and legal assistance.30
Etowah has become emblematic of many of the most damning aspects of the United
States detention and incarceration system: detainees are subject to physical violence and verbal abuse, unconstitutional prolonged and indefinite detention, highly
restrictive prison-like conditions, insufficient nutrition, inadequate mental health and
medical care, excessive use of solitary confinement, and lack of access to in-person
visitation, outdoor recreation, meaningful programming, and—because of Etowah’s
extremely remote location—family and community contact, legal orientation, representation, and social services.31 In light of Etowah’s record of systemic human rights
violations, multiple civil society groups have called for its immediate closure.32
In fact, ICE was on the brink of terminating its contract with Etowah County in 2010.
But Etowah County officials and Alabama Congressional representatives, including
Sen. Richard Shelby, Rep. Mike Rogers, and Rep. Robert Aderholt (chair of Homeland
Security subcommittee of House Appropriations Committee) pressured ICE to delay and then abandon its plans for Etowah’s closure. ICE announced in April 2011 it
would continue detaining immigrants there.33
Recently, DHS’s own internal watchdog, the Office of Civil Rights and Civil Liberties,
singled out Etowah in its annual report, noting the frequency of civil rights complaints and renewing a call for ICE to stop using the facility to house detainees.34
Nonetheless, despite repeated complaints from detainees, human rights advocates,
and even DHS itself, Etowah has passed its recent inspections with flying colors. A
recent report by the National Immigrant Justice Center and Detention Watch Network on ICE’s failed inspections process highlighted Etowah as one of the most
glaring examples of the disconnect between inspections ratings and the reality on
the ground.35
The extent of the isolation faced by detainees at Etowah cannot be understated detainees are held far away from their families, communities and the public at large.
Judges in the Northern District of Alabama are the only impartial actors who can
bear witness to the plight of these detainees. What courts choose to do after habeas
petitions are filed is thus of the utmost importance.

Politicized Neglect, supra note XX (Etowah’s programming been ranked as “acceptable” by ICE
inspectors, based on the fact that the facility “claims to offer a wide range of programs for detained people” including “‘World Aquaculture Program,’ ‘Puppies without Borders,’ and ‘Adventure
Programming.’”); Lives in Peril, supra note 1 at XX (detainees reported that “these programs were
effectively nonexistent and in reality the facility had a nothing more than a broken fish tank and a
rock-climbing wall in a room the size of a cell.”)

Politicized Neglect, supra note 1 at 5-6; Expose & Close, supra note 1 at XX; Detention Watch
Network, Expose & Close, One Year Later, supra note 1 at 4

Politicized Neglect, supra note 1 at 6 (“With limited or no proximity to legal providers, and only a
few ICE deportation officers to handle requests, many detainees languish in Etowah without any
legal assistance. . . . In allowing Etowah to continue to detain immigrants, despite its inappropriate
and inhumane conditions and distance from legal services providers and ICE’s own regional field
operations, the agency is creating reasonable doubt regarding its commitment to centralization
and reform.”)

Written Statement of Carl Takei, supra note 10 at 8 (“Etowah is isolated from lawyers who specialize in immigration law; there are no nearby legal or other service providers who have been able
to provide legal orientation or ‘know your rights’ programs at the facility. Since July 2011, the facility has primarily held men who are expected to remain in immigration custody for a long period
of time, often because of diplomatic problems between the United States and their home countries
that keep them in limbo for months or years. Many could petition the courts to release them from
custody based on this state of limbo, but the lack of access to immigration attorneys in the area
makes it extremely difficult for detainees at Etowah to successfully navigate the process.”)

See reports cited in note 1, supra

See, e.g., Expose & Close, supra note 1; CIVIC Complaint, supra note 1; Advocates’ Sign-on Letter
to Sec. Johnson, supra note 1

Politicized Neglect, supra note 1 at 2 (citing articles by Lisa Rogers in the Gadsden Times)

See Department of Homeland Security Office for Civil Rights and Civil Liberties, “Fiscal Year 2015
Annual Report to Congress” (June 10, 2016) at 28, 35, https://www.dhs.gov/sites/default/files/
publications/crcl-fy-2015-annual-report.pdf

See Lives in Peril, supra note 1.

THE VACUUM
THE VACUUM CREATED BY THE NORTHERN ALABAMA DISTRICT COURT
Without the Court in the Northern District of Alabama, Immigration and Customs Enforcement (ICE), a non-judicial entity, determines who stays locked up in immigration
detention at Etowah County Detention Center (Etowah) and who gets released. The
internal review system for an immigrant’s detention, or Post Order Custody Review
(POCR), is rote, highly generalized and sometimes abusive. ICE misuses the Failure to
Comply status to deny the constitutional review of an immigrant’s detention. Failure
to comply is defined as “refusing to comply with a request for a concrete action....”36
When ICE issues a failure to comply notice, they are no longer required under their
regulations to conduct POCR, including at the 180 day mark, where ICE is required
to conduct a more rigorous inquiry.37 Put simply, once a detainee has been labeled
as failing to comply, ICE claims the authority to detain them indefinitely. Even when
ICE releases detainees on Orders of Supervision, they re-detain individuals who it
knows cannot be removed, without cause. ICE often generalizes, an axiomatically
individualized process of securing travel documents – frequently claiming that travel documents will be issued on the basis of specious assumptions. Detainee’s allegations also raise widespread concern that ICE is falsifying travel documents and
attempting to remove detainees to countries with which they have no relationship.
ICE’S INTERNAL CUSTODY REVIEW PROCESS IS AN INSUFFICIENT PROTECTION
AGAINST PROLONGED DETENTION
ICE is tasked with evaluating a person’s detention in the context of the foreseeability
of deportation to ensure that immigrants are not held indefinitely. ICE’s detention
review process is called Post-Order Custody Review, or POCR. Courts are
supposed to buttress the indefinite detention of an immigrant under the Supreme
Court case Zadvydas especially when a habeas corpus petition is filed and the concerns raised are the kinds of factual disputes that the Courts should be reviewing.
The absence of independent and judicial intervention has given ICE the opportunity
to conduct cursory, generalized reviews without any kind of outside check.
Immigrants receive a review of their detention or POCR after 90 days and 180 days

of post-final order detention (and at intervals after 180 days). The criteria for 90-day
POCR and 180-day POCR are different, in accordance with the Supreme Court case
Zadvydas. The Supreme Court rendered post-final order detention unreasonable after 180 days unless the government could prove that a detainee’s removal was reasonably foreseeable, the criteria necessarily shift the greater focus on the foreseeability of removal. In theory, POCR is designed to evaluate an immigrant’s candidacy
for release on an Order of Supervision.
Immigrants often file the results of their custody review (called “Decision to Continue Detention”) as addenda to their habeas corpus petitions, to substantiate allegations that their detention is unjustified and that they do not have access to adequate
procedural protections. If the Court in the Northern District of Alabama were to look
more closely at the POCR documents submitted into the record, they would find that
ICE makes mistakes, such as failing to list the correct country of removal or any
country at all. The Court would also see that ICE consistently employs stock language to satisfy the regulatory requirements of 90- and 180-day POCR. In using this
generic language to satisfy the POCR requirements, ICE often mischaracterizes the
detainee’s criminal histories in order to cast them as dangerous and flight risks, and
fabricates the likelihood of their removal. ICE frequently provides courts with misleading information about the foreseeability or the existence of travel documents.
ICE uses the justification that travel documents are forthcoming, which is only appropriate at the 90 day review period, at the 180 day review. Stronger judicial oversight of habeas corpus petitions would provide a check on ICE and would help to
curb some of ICE’s more concerning behaviors in the POCR process.
After detainees file habeas corpus petitions, essentially threatening ICE with judicial
oversight of their actions, ICE removes or temporarily releases many of the detainees. The fact that ICE releases an individual who has received multiple POCR reviews
only after they file a habeas petitions suggests that the POCR review process is
inadequate. A more pessimistic view of ICE releasing detainees out of Etowah only
after they have filed a habeas corpus petition and only after continuances is that
ICE was misleading or dishonest in its initial claim that these detainees’ deportation
was foreseeable. It is undoubtedly true that in some instances, the uncertainty of
whether a detainee’s deportation was foreseeable led ICE to continue their detention.
However, there are plenty of instances where detainees should have been released
under POCR – where evidence abounded that travel documents would not be forthcoming, for example. Instead, immigrants were needlessly locked up for countless
months. The following stories highlight just a few examples of where ICE continued
detention through the POCR review but later released detainees who had brought
their detention to the Court’s attention. The language of their POCR review indicates
the flippancy with which ICE treats the continued detention of immigrant detainees:

Akele was born in a remote East African bush camp, where there was no government presence – no towns, no hospitals and therefore no birth certificates. In his
habeas petition, Akele stated “Basically, Petitioner is stateless.” He communicated
this to ICE, and yet his POCR read: “ICE is currently working with the government
of Ethiopia to secure a travel document for your removal from the United States.
A travel document from the Government of Ethiopia is expected, therefore you are
to remain in ICE custody at this time.” After filing a habeas corpus petition in the
Northern District of Alabama, ICE released Akele on an order of supervision despite
the fact that all of his POCRs alleged that travel documents would be forthcoming.
Akele remained vulnerable to re-detention at any moment without new cause despite the fact that ICE was unable to secure travel documents from Ethiopia after
nearly a year of trying. Despite his habeas petition, he was left with no court finding
on his claims.
Noor had no country to claim citizenship - indeed, his deportation order made a
finding of law that he was stateless. Yet, with more than 220 days in detention and
three POCR reviews, ICE alleged the foreseeability of his removal and the existence
of a passport that only could have been fraudulent: “The DHS has submitted your
name for the next charter flight to Palestine. Your removal to Palestine is imminent.” Then, 30 days later: “You have a valid passport. Your removal to Palestine is
expected to occur in the reasonably foreseeable future; therefore you are to remain
in ICE custody at this time.” And, 30 days after that: “You have a valid passport.
Your removal to Palestine is expected to occur in the reasonably foreseeable future; therefore you are to remain in ICE custody at this time.” After filing a habeas
corpus petition, ICE released Noor on an order of supervision. Noor’s case is a good
example of how ICE’s internal custody review system fails to adequately assess
the likelihood of an individual’s removal and the significant liberty interests implicated by these failures. ICE’s release of Noor circumvented any judicial inquiry into
the eventual foreseeability of Noor’s removal and Noor was left without protection
from re-detention by ICE at any moment without new grounds despite the fact that
Noor was found by an Immigration Court to be stateless.
Anputu was convicted of marijuana possession, failure to appear, and shoplifting,
for which he served a total of 90 days in jail. At his 90 day-custody review, ICE said
“Your various arrests and/or convictions demonstrate a history of failing to follow
legal and judicial orders and indicate to ICE that you are not a likely candidate for
release at this time. ICE is aggressively pursuing efforts to obtain a travel document for your removal. ICE believes your removal will occur in the reasonably foreseeable future.” Later, they simply used stock language to allege the imminence of
his removal: “A request for a travel document was submitted to the government of
Thailand and ICE is currently working with the government of Thailand in secur-

ing a travel document for your removal from the United States. There is no reason
to believe at this time that your removal will not take place within the reasonably
foreseeable future.” After filing a habeas corpus petition, ICE released Anputu on an
order of supervision before the Court could hear his case leaving Anputu without a
decision and subject to re-detention.
On its face, the phrase is a mechanical recitation of what the Supreme Court required
in their ruling on Zadvydas, in order to prolong an immigrant’s detention beyond the
six month point. ICE believes that as long it claims that a detainee is removable in
the ‘reasonably foreseeable future’, it is compliant with the Supreme Court ruling.
However, the range of circumstances with which ICE uses this phrase suggests that
the Courts should be rigorously reviewing these claims and require a greater evidentiary showing in order to continue the detention of an immigrant. Furthermore,
securing travel documents is an inherently individualized process that turns on numerous factors that could take a very long time to resolve. These factors include
the existence of birth records and ability to locate them and confirm their validity,
embassy cooperation and sworn affidavits from family members who can attest to
a detainee’s citizenship.
Splitting the phrase ICE uses to justify ongoing detention into its component parts
and analyzing each in the context of various types of issues raised in the Etowah
habeas petitions, demonstrates that ICE’s submissions are conclusory and cannot
justify ongoing detention:
The first part of ICE’s generic statements on travel documents - “[t]he Government of
XYZ has not declined to issue a travel document in the Petitioner’s case,” is merely a
vague claim and in many instances, ICE is ignoring concrete individualized evidence
that the embassy will not issue travel documents. ICE should not be able to use the
fact that the embassy has not declined to issue documents as evidence that such
documents will be forthcoming. When an embassy cannot identify a detainee as a
citizen or will not issue travel documents – as is its right as a sovereign nation –
detainees often secure the denial in writing. Detainees share these documents with
ICE, and if they file habeas corpus petitions, often include such official letters as
proof that their removal is not reasonably foreseeable. The following is an example
of ICE’s disregard of such official letters:
In the case of five Somalis detained at Etowah the petitioners included an official
attestation from the Somali Permanent Mission to the United Nations stating that
“it is impossible to retrieve any records concerning civil status” from Somalia and
that there were no “consulate services for issuing travel documents or repatriation procedures”. Still, the government response to their habeas corpus petitions
included the following language: “the government of Somalia has not indicated

that they would not authorize a travel document for” the detainees, that their “deportation is in the very foreseeable future,” and that “there is no reason to believe
that [they] will not be removed in the very foreseeable future.” When they raised
this issue in the Court, ICE released four detainees and removed one to an unnamed place before the Court could inquire. ICE can and has re-detained Somalis periodically despite the fact that the Somali Permanent Mission continues to
state that it cannot issue travel documents. Thus, without the court’s protection
these Somali’s continue to live in fear of arbitrary, indefinite detention.
Ibrahim, who submitted to the Court the same letter from the official at the Somali
Permanent Mission to the United Nations stating that travel documents would not
issued, was the only one of the five Somalis to be removed. ICE put Ibrahim on a
plane leaving the United States before the Court reviewed his case. Because the
Court does not require ICE to submit proof of travel documents or even the country
to which a detainee was deported, we have no way of knowing to which country Ibrahim was deported.
The second part of ICE’s generic statement is about the likelihood of securing travel
documents: “the Government of XYZ has issued travel documents in the past, and
there is no reason to believe that the Government of XYZ will not issue a travel document in this matter,” is inherently misleading. A review of habeas corpus petitions
filed in the NDAL reveals that although ICE may have been able to remove some immigrants to a particular country, ICE was unable to secure travel documents for many
other habeas corpus petitioners from the same country. Put another way, ICE’s historic ability to secure travel documents for some set of individuals from a particular
country is not a sufficient indication of the likelihood of removal in the future or in the
particular case at hand. There are any number of obstacles to a country’s ability to
issue travel documents - from petitioner’s having come to the United States at such
an early age, before records were digitized, to being born in rural areas where there
was no government presence to issue birth certificates, to not being able to identify
living family members who can substantiate an individual’s citizenship. These are
highly individualized factors; for ICE to ever claim with 100% certainty that travel
documents are forthcoming simply because some individuals have been deported
to a specific country, as ICE regularly does with the courts, is wholly misleading.
IMMIGRANTS ARE BEING DENIED CUSTODY REVIEW OF THEIR DETENTION BECAUSE OF ICE’S FRIVOLOUS ACCUSATIONS
Our review of habeas corpus petitions in the Northern District of Alabama revealed
ICE’s continuing misuse of the failure to comply status to prolong the detention period for immigrants who are unlikely to be removed. When ICE issues a failure to
comply notice, it is no longer required to conduct POCR, including at the 180 day

mark, where ICE is required to conduct a more rigorous inquiry.38 Put simply, once
a detainee has been labeled as failing to comply, ICE claims the authority to detain
that person indefinitely. An internal Department of Homeland Security (DHS) Office
of the Inspector General Report published in 2007 found that there were many cases
where ICE incorrectly issues a Failure To Comply warning or issues one without sufficient evidence or adequate justification.39 Our review of habeas petitions filed since
revealed that problems with ICE’s use of the failure to comply status persist.
ICE misuses the failure to comply status. The fact that when an immigrant who has
filed a habeas corpus petition in the Court is released on an order of supervision after
ICE issued multiple failure to comply notices provides at least some evidence that
ICE recognizes that the continued detention of the immigrant is unconstitutional.
The case of William, who arrived in the United States by boat from Jamaica in the
1990s at the age of 10, illustrates ICE’s use of failure to comply status to prolong
an immigrant’s confinement. William was abandoned by his mother in Jamaica and
had no other stated family. ICE believed that William was a citizen of Trinidad and
Tobago. ICE claimed that William failed to provide any identification and that his only
excuse for lack of documentation was his “lack of family.” In other words, despite the
fact that William came to the US by boat as a ten year old child ICE blamed him for
his lack of family and for the fact that he has no proof of Trinidadian identity.
William spent a year and half in detention after receiving a final order of removal despite the fact that the Embassy of the Republic of Trinidad and Tobago provided an
official letter stating that they were not able to confirm William’s identity and therefore could not legally issue travel documents. Although ICE clearly had this information, they continued to detain William and actually filed criminal charges against
William in January 2012 for failing to comply. This charge was dismissed by the
District Court of New Mexico in May 2012. Despite this dismissal and a letter from
the Embassy of the Republic of Trinidad and Tobago denying the issuance of travel documents, ICE detained William for another five months, until he filed a habeas
corpus petition. When William finally signaled his unlawful detention to the Court in
the Northern District of Alabama, ICE released William on an order of supervision.
There was no judicial scrutiny over ICE’s behavior in this case and William remains
vulnerable to re-detention.
DHS itself has recognized field officers’ abuse of the failure to comply label. The
abuse of this label enables ICE to prolong the detention of individuals even in cases
where ICE knows it will not be able to effectuate the immigrant’s removal. The fact
that ICE sometimes releases immigrants they have charged with failure to comply
once the detainees filed habeas corpus petitions is an indication of ICE”s concerns
that its actions would not hold up to rigorous judicial scrutiny. However, in the ab-

sence of such scrutiny as is the case in the Northern District of Alabama, ICE is not
held accountable for indefinitely detaining immigrants.

ABUSE
ICE FLOUTS THE SUPREME COURT BY GENERALIZING THE PROCESS OF SECURING
TRAVEL DOCUMENTS – AN INHERENTLY INDIVIDUALIZED PROCESS
Immigration and Customs Enforcement uses stock language in its submissions to
the Courts about the likelihood of travel documents being issued that are often dishonest or internally contradictory. In instances where filing a habeas corpus petition
does not immediately result in a detainee’s removal from the United States or release on an Order of Supervision, ICE, represented by the U.S. Attorney’s office, files
a response with the Court. In the 97.5% of habeas corpus petitions that claimed that
travel documents were the source of their prolonged detention, the response essentially recites the facts of an immigrant’s conviction, deportation case, and custody,
and lists ICE’s attempts to secure a travel document and concludes with a variation
of the exact same language, the overwhelming majority of the time:
“The Government of XYZ has not declined to issue a travel document in the Petitioner’s case. The government of XYZ has issued travel documents in the past,
and there is no reason to believe that the Government of XYZ will not issue a travel document in this matter. Based upon this officer’s experience and expertise, I
believe that ICE will secure a travel document for the petitioner from the Government of XYZ in the reasonably foreseeable future.”
On its face, the phrase is a mechanical recitation of what the Supreme Court required
in their ruling on Zadvydas, in order to prolong an immigrant’s detention beyond the
six month point. ICE believes that as long it claims that a detainee is removable in
the ‘reasonably foreseeable future’, it is compliant with the Supreme Court ruling.
However, the range of circumstances with which ICE uses this phrase suggests that
the Courts should be rigorously reviewing these claims and require a greater evidentiary showing in order to continue the detention of an immigrant. Furthermore,
securing travel documents is an inherently individualized process that turns on numerous factors that could take a very long time to resolve. These factors include
the existence of birth records and ability to locate them and confirm their validity,
embassy cooperation and sworn affidavits from family members who can attest to
a detainee’s citizenship.

Splitting the phrase ICE uses to justify ongoing detention into its component parts
and analyzing each in the context of various types of issues raised in the Etowah
habeas petitions, demonstrates that ICE’s submissions are conclusory and cannot
justify ongoing detention:
The first part of ICE’s generic statements on travel documents - “[t]he Government of
XYZ has not declined to issue a travel document in the Petitioner’s case,” is merely a
vague claim and in many instances, ICE is ignoring concrete individualized evidence
that the embassy will not issue travel documents. ICE should not be able to use the
fact that the embassy has not declined to issue documents as evidence that such
documents will be forthcoming. When an embassy cannot identify a detainee as a
citizen or will not issue travel documents – as is its right as a sovereign nation –
detainees often secure the denial in writing. Detainees share these documents with
ICE, and if they file habeas corpus petitions, often include such official letters as
proof that their removal is not reasonablyforeseeable. The following is an example
of ICE’s disregard of such official letters:
In the case of five Somalis detained at Etowah the petitioners included an official
attestation from the Somali Permanent Mission to the United Nations stating that
“it is impossible to retrieve any records concerning civil status” from Somalia and
that there were no “consulate services for issuing travel documents or repatriation
procedures”. Still, the government response to their
habeas corpus petitions included the following language: “the government of Somalia has not indicated that they would not authorize a travel document for” the
detainees, that their “deportation is in the very foreseeable future,” and that “there is
no reason to believe that [they] will not be removed in the very foreseeable future.”
When they raised this issue in the Court, ICE released four detainees and removed
one to an unnamed place before the Court could inquire. ICE can and has re-detained
Somalis periodically despite the fact that the Somali Permanent Mission continues
to state that it cannot issue travel documents. Thus, without the court’s protection
these Somali’s continue to live in fear of arbitrary, indefinite detention.
Ibrahim, who submitted to the Court the same letter from the official at the Somali
Permanent Mission to the United Nations stating that travel documents would not
issued, was the only one of the five Somalis to be removed. ICE put Ibrahim on a
plane leaving the United States before the Court reviewed his case. Because the
Court does not require ICE to submit proof of travel documents or even the country
to which a detainee was deported, we have no way of knowing to which country Ibrahim was deported.

The second part of ICE’s generic statement is about the likelihood of securing travel
documents: “the Government of XYZ has issued travel documents in the past, and
there is no reason to believe that the Government of XYZ will not issue a travel document in this matter,” is inherently misleading. A review of habeas corpus petitions
filed in the NDAL reveals that although ICE may have been able to remove some immigrants to a particular country, ICE was unable to secure travel documents for many
other habeas corpus petitioners from the same country. Put another way, ICE’s historic ability to secure travel documents for some set of individuals from a particular
country is not a sufficient indication of the likelihood of removal in the future or in the
particular case at hand. There are any number of obstacles to a country’s ability to
issue travel documents - from petitioner’s having come to the United States at such
an early age, before records were digitized, to being born in rural areas where there
was no government presence to issue birth certificates, to not being able to identify
living family members who can substantiate an individual’s citizenship. These are
highly individualized factors; for ICE to ever claim with 100% certainty that travel
documents are forthcoming simply because some individuals have been deported
to a specific country, as ICE regularly does with the courts, is wholly misleading.
The final sentence in ICE’s stock language: “Based upon this officer’s experience
and expertise, I believe that ICE will secure a travel document for the petitioner from
the Government of XYZ in the reasonably foreseeable future,” is also misleading. Before ICE lists this stock paragraph it often recites its attempts to secure a travel document. The combination is often contradictory. Sometimes ICE will have contacted
an embassy literally dozens of times, enlisted the help of the Headquarters Travel
Document Unit (ICE HQTDU) and submitted formal applications to the embassy or
consulate, and still have no meaningful result or response. Other times, ICE uses this
generic language with respect to countries where they have not been able to secure
travel documents in the past few years. After all of that, claiming that ‘based on
experience and expertise, a travel document is forthcoming’, is meaningless. If anything, officer’s experience and expertise should reveal that travel documents could
be forthcoming, they could take months or years to be issued, or they could never
come at all.
THE COURTS’ FAILURE TO ADJUDICATE HABEAS PETITIONS HAS LEFT AN OPEN
QUESTION AS TO WHETHER ICE OBTAINS FRAUDULENT TRAVEL DOCUMENTS
Multiple habeas corpus petitions contained allegations by detainees that ICE was
attempting to deport them with fraudulent travel documents. Because of the total
lack of involvement by the Court, the validity of these allegations remains unexamined. The following allegations by detainees raise serious concerns as to the lengths
that ICE will go to when a travel document is not readily available.

Robert is a native of Togo, who cooperated fully with ICE’s attempts to secure travel
documents. Presumably when it could not secure a document from Togo, ICE attempted to remove him anyway. According to his habeas corpus petition, ICE took
him to a staging ground at Alexandria, Louisiana, where a Deportation Officer (DO)
told him that they had no travel documents for him and so they would return him to
LaSalle. Five minutes later, the same DO received a text message saying that they
had secured travel documents. The next day, ICE took Robert to the Atlanta airport
- he asked to see the travel documents multiple times but ICE would not allow him
to until they were inside the plane. Inside the plane, they showed Robert an expired
Belgian passport with which they were going to send him to Belgium. After that, he
refused to comply. Robert’s relationship, if he had one at all, to Belgium was unclear.
After Robert raised the incident in his habeas corpus petition in the courts ICE released him on an order of supervision. There was never any judicial inquiry into the
validity of the travel documents that ICE allegedly secured for Robert.

for another five months, until he filed a habeas corpus petition. When William finally
signaled his unlawful detention to the Court in the Northern District of Alabama, ICE
released William on an order of supervision. There was no judicial scrutiny over ICE’s
behavior in this case and William remains vulnerable to re-detention.

The case of William, who arrived in the United States by boat from Jamaica in the
1990s at the age of 10, illustrates ICE’s use of failure to comply status to prolong
an immigrant’s confinement. William was abandoned by his mother in Jamaica and
had no other stated family. ICE believed that William was a citizen of Trinidad and
Tobago. ICE claimed that William failed to provide any identification and that his only
excuse for lack of documentation was his “lack of family.” In other words, despite
the fact that William came to the US by boat as a ten year old child ICE blamed him
for his lack of family and for the fact that he has no proof of Trinidadian identity.
William spent a year and half in detention after receiving a final order of removal despite the fact that the Embassy of the Republic of Trinidad and Tobago provided an
official letter stating that they were not able to confirm William’s identity and therefore could not legally issue travel documents. When ICE could not secure a travel
document for William, it brought criminal charges against him for failing to comply
(failing to comply is a federal crime for which prison sentences can be imposed, but
unlike regular FTC status, require actual criminal proceedings). At the time ICE had
him charged with failing to comply, William already had a letter in his possession
from the Embassy of the Republic of Trinidad and Tobago stating: “After exhaustive
searches of the records held at the Immigration Division, Ministry of National Security, and the Register of Births and Deaths of the Registrar General’s Department, no
record was found pertaining to the birth of William, born on July 5th, 1965 in Trinidad and Tobago neither was there any record of the issue of any travel document to
anyone holding that biometric information…it will not be possible to issue a travel
document in his favour.” Although ICE clearly had this information, they continued
to detain William and actually filed criminal charges against William in January 2012
for failing to comply. This charge was dismissed by the District Court of New Mexico
in May 2012. Despite this dismissal and a letter from the Embassy of the Republic of
Trinidad and Tobago denying the issuance of travel documents, ICE detained William

ICE ABUSE HAS DEVASTATING IMPACTS ON THE LIVES OF DETAINEES AND THEIR
LOVED ONES

Johnathan expressed grave concern that the emergency travel document allegedly
procured from Nigeria for him had been procured without his signature. His wife
spoke to the consulate who said that in order for such a certificate to be produced,
the consulate would have to speak to the detainee - something that never occurred.
His habeas corpus petition was denied by the Court, who stated that “[r]egardless of
whether J’s signature on the travel document is a forgery, J fails to state a claim for
relief under Zadvydas because he “has not provided evidence of a good reason to
believe that there is no significant likelihood of removal in the reasonably foreseeable future.” We do not know what happened to him.

The defining characteristic of detention in civil immigration facilities is a profound
loss of liberty. Immigrants are locked up, unable to enjoy basic freedoms and incapable of accessing their families and communities. Unlike individuals detained
under the criminal system who often have specific sentences – with a start and
end date - there is no definitive end for detained immigrants. There are so many
variables in the removal process and so few procedural protections to ensure that
detainees have some sense of the duration of their detention. While civil detention
is allegedly non-punitive and administrative in nature, and criminal incarceration is
rehabilitative and punitive, even a general look at the reality of immigration detention
renders the distinction meaningless.
DETAINEES’ FAMILIES AND COMMUNITIES SUFFER GREATLY
Beyond the sheer trauma of being detained pending deportation, isolated from family, friends and community, immigrants and their loved ones have no certainty over
when they might be free from detention. Detention has fear reaching consequences
on immigrant families and their communities. Below are stories about immigrants’
equities and how families are being impacted by detention.

Department of Homeland Security Office of the Inspector General, ICE’s Compliance with Detention Limits for Aliens with a Final Order of Removal from the United States, 18 (February, 2007)
[hereinafter DHS OIG Report].
37
Id at 5.
38
DHS OIG Report, 5.
39
Id at 1.
36

Jose wrote in his habeas corpus petition that while he was detained, his nine year
old U.S. citizen daughter “was inappropriately touched” by a friend of the family.
The incident was reported to the police, criminal charges have been brought against
the perpetrator of the offense, and the child is undergoing therapy. The little girl has
been crying, acting out, and telling the therapist, “My daddy is in jail but this bad
man is not in jail.” The continued detention of Jose is causing tremendous psychological harm to him and his young daughter, especially after her abuse. He is needed
at home by his family and his daughter to provide her with a source of comfort and
strength through this ordeal.
Bedford’s mother wrote: “Three years ago I had a stroke and also in a coma and was
hospitalized for over three months and during that time Bedford never left my side
according to the doctors and my family he met with the doctors each day discussing
my treatment plan and he even slept at the hospital…in my recovery I totally depended on Bedford due to his flexible work schedule as a plumber to do constant doctor
visits, grocery shopping and preparing my meals he also assisted me financially. My
prescriptions are very expensive and Bedford could also help me with this expense.
We also spent time together sitting in front of the porch talking about the past, taking
me to lunch and also sharing his cook food with me too. Bedford was always available all the time making time to help me out all the time however, all of this change
since he has been incarcerated.” He owned two homes, had two children, and was
held in detention for more than a year despite an official letter explaining that because of his lack of property and kin in country XYZ, a travel document would not be
issued.
Emilio had four children at the time of his detention at Etowah (in addition to a job,
familial and spiritual support, and a place to live). He wrote “I am the father of four
children who are American citizens ranging from 10 to 2 years old. It is important to
me to become a part of their lives once again and to help raise them…Each and every
day I’m held in detention continues to hurt my children mentally and financially since
I’m unable to provide for them.” He was in detention for a year and a half while his
family suffered.
Mfefe’s fiancée submitted a letter of support in favor of his habeas corpus petition.
She wrote, “I want to do everything in my power to help Mfefe because he is the love
of my life and I can’t see going one more day without Mfefe being here with me. All I
want to do is to marry him and have a family, but him being in Alabama isn’t helping
this to happen. I cannot move on with him because he is in Alabama.” Mfefe had no
criminal record. He was held for almost a year.

STORIES
CASE STUDIES

MACHAR
Machar was born in South Sudan in 1968 and came to the US as a refugee in
2001. He has a wife and six children who are all either Legal Permanent Residents
or U.S. Citizens. Machar first entered ICE detention in July 2007, but was released
on an order of supervision in May 2008. In June 2013, he was unexpectedly
re-detained. At the time of filing his habeas corpus petition, Machar had already
been detained in Etowah for almost a whole year. ICE’s argument for continuing
to detain Machar was based on his convictions prior to 2007 when he was first
detained, and therefore was considered a danger to the community.However, ICE
had previously released him indicating that despite the prior convictions they had
not found him to be a danger to the community. ICE acknowledged that Machar
was a citizen and native of South Sudan and they discussed attempts to secure
documents from the Consulate of South Sudan in Washington D.C. In their final
review dated January 16, 2015, ICE stated that they were working with the government of Sudan to secure travel documents for his removal. Machar expressed
fear and concerns about being deported to Sudan, a country that he is not from
and that has been in armed conflict with South Sudan. The Court never ordered a
hearing and failed to acknowledge these fears about being deported to the wrong
country. The Court also did not require ICE to provide any more details about the
process of securing travel documents from South Sudan. After holding Machar
in post-final order detention for a second time for fourteen months, ICE released
him on an order of supervision. ICE then moved to dismiss Machar’s habeas
petition as moot, thereby circumventing judicial inquiry into whether ICE was attempting to deport Machar to the wrong country.
CESAR
Cesar arrived in the United States in November of 2012 as an asylum seeker from
Eritrea. After his application for asylum was denied, he was detained by ICE. Cesar had no criminal convictions and had never served any time in prison. In Cesar’s habeas corpus petition, he contested ICE’s allegations that he was failing
to comply by detailing his personal attempts to secure a travel document from

the Eritrean consulate, by making phone calls and supplying ICE with all of his
documents. His habeas corpus petition alleges that the Consulate informed him
on April 15th, 2014 that they did not recognize him as a citizen of Eritrea, and that
they would not issue a travel document. His habeas corpus petition further alleges that ICE informed him that the El Salvadorian consulate would take care of
his travel documents. Cesar states clearly in his habeas corpus petition that he is
obviously not from El Salvador and should not be deported to that country. Twenty-two days after Mr. Cesar filed his habeas corpus petition, the Court ordered the
ICE to respond within twenty days. It did not order any specific response in relation
to the allegations about ICE securing travel documents and the removal attempts
to El Salvador. Nine days before a response was due, ICE requested an extension
of time, which the Court granted on the same day. Sixteen days later ICE released
Cesar on an order of supervision after a year and a half in detention, completely
circumventing judicial review. The Court never made findings on whether or not
ICE was attempting to remove Cesar to El Salvador. Cesar was denied his right to
present his case in Court, remained vulnerable to re-detention at any moment and
remained vulnerable to deportation to a country to which he has no connection.
NOOR
Noor had no country to claim citizenship - indeed, his deportation order made a
finding of law that he was stateless. Yet, with more than 220 days in detention
and three POCR reviews, ICE alleged the foreseeability of his removal and the existence of a passport that only could have been fraudulent: “The DHS has submitted your name for the next charter flight to Palestine. Your removal to Palestine is
imminent.”Then, 30 days later: “You have a valid passport. Your removal to Palestine is expected to occur in the reasonably foreseeable future; therefore you are
to remain in ICE custody at this time.” And, 30 days after that: “You have a valid
passport. Your removal to Palestine is expected to occur in the reasonably foreseeable future; therefore you are to remain in ICE custody at this time.” After filing
a habeas corpus petition, ICE released Noor on an order of supervision. Noor’s
case is a good example of how ICE’s internal custody review system fails to adequately assess the likelihood of an individual’s removal and the significant liberty
interests implicated by these failures. ICE’s release of Noor circumvented any judicial inquiry into the eventual foreseeability of Noor’s removal and Noor was left
without protection from re-detention by ICE at any moment without new grounds
despite the fact that Noor was found by an Immigration Court to be stateless.

WILLIAM
The case of William, who arrived in the United States by boat from Jamaica in the
1990s at the age of 10, illustrates ICE’s use of failure to comply status to prolong
an immigrant’s confinement. William was abandoned by his mother in Jamaica
and had no other stated family. ICE believed that William was a citizen of Trinidad
and Tobago. ICE claimed that William failed to provide any identification and that
his only excuse for lack of documentation was his “lack of family.” In other words,
despite the fact that William came to the US by boat as a ten year old child ICE
blamed him for his lack of family and for the fact that he has no proof of Trinidadian identity. William spent a year and half in detention after receiving a final
order of removal despite the fact that the Embassy of the Republic of Trinidad
and Tobago provided an official letter stating that they were not able to confirm
William’s identity
and therefore could not legally issue travel documents. When ICE could not secure
a travel document for William, it brought criminal charges against him for failing
to comply (failing to comply is a federal crime for which prison sentences can be
imposed, but unlike regular FTC status, require actual criminal proceedings). At
the time ICE had him charged with failing to comply, William already had a letter
in his possession from the Embassy of the Republic of Trinidad and Tobago stating: “After exhaustive searches of the records held at the Immigration Division,
Ministry of National Security, and the Register of Births and Deaths of the Registrar General’s Department, no record was found pertaining to the birth of William,
born on July 5 th , 1965 in Trinidad and Tobago neither was there any record of
the issue of any travel document to anyone holding that biometric information it
will not be possible to issue a travel document in his favour.” Although ICE clearly
had this information, they continued to detain William and actually filed criminal
charges against William in January 2012 for failing to comply. This charge was
dismissed by the District Court of New Mexico in May 2012. Despite this dismissal and a letter from the Embassy of the Republic of Trinidad and Tobago denying
the issuance of travel documents, ICE detained William for another five months,
until he filed a habeas corpus petition. When William finally signaled his unlawful
detention to the Court in the Northern District of Alabama, ICE released William on
an order of supervision. There was no judicial scrutiny over ICE’s behavior in this
case and William remains vulnerable to re-detention.
JOHNATHAN
Johnathan expressed grave concern that the emergency travel document allegedly
procured from Nigeria for him had been procured without his signature. His wife

spoke to the consulate who said that in order for such a certificate to be produced, the consulate would have to speak to the detainee - something that never
occurred. His habeas corpus petition was denied by the Court, who stated that
““[r]egardless of whether J’s signature on the travel document is a forgery, J fails
to state a claim for relief under Zadvydas because he “has not provided evidence
of a good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future.” We do not know what happened to him.
JOSE
Jose wrote in his habeas corpus petition that while he was detained, his nine year
old U.S. citizen daughter “was inappropriately touched” by a friend of the family. The incident was reported to the police, criminal charges have been brought
against the perpetrator of the offense, and the child is undergoing therapy. The
little girl has been crying, acting out, and telling the therapist, “My daddy is in jail
but this bad man is not in jail.” The continued detention of Jose is causing
tremendous psychological harm to him and his young daughter, especially after
her abuse. He is needed at home by his family and his daughter to provide her
with a source of comfort and strength through this ordeal.
ROBERT
Robert is a native of Togo, who cooperated fully with ICE’s attempts to secure
travel documents. Presumably when it could not secure a document from Togo,
ICE attempted to remove him anyway. According to his habeas corpus petition,
ICE took him to a staging ground at Alexandria, Louisiana, where a Deportation
Officer (DO) told him that they had no travel documents for him and so they would
return him to LaSalle. Five minutes later, the same DO received a text message
saying that they hadsecured travel documents. The next day, ICE took Robert to
the Atlanta airport - he asked to see the travel documents multiple times but ICE
would not allow him to until they were inside the plane. Inside the plane, they
showed Robert an expired Belgian passport with which they were going to send
him to Belgium. After that, he refused to comply. Robert’s relationship, if he had
one at all, to Belgium was unclear. After Robert raised the incident in his habeas
corpus petition in the courts ICE released him on an order of supervision. There
was never any judicial inquiry into the validity of the travel documents that ICE
allegedly secured for Robert.
IBRAHIM
The name of the story is Ibrahim. In the case of five Somalis detained at Etowah
the petitioners included an official attestation from the Somali Permanent

Mission to the United Nations stating that “it is impossible to retrieve any
records concerning civil status” from Somalia and that there were no “consulate services for issuing travel documents or repatriation procedures”. Still, the
government response to their habeas corpus petitions included the following
language: “the government of Somalia has not indicated that they would not
authorize a travel document for” the detainees, that their “deportation is in the
very foreseeable future,” and that “there is no reason to believe that [they] will
not be removed in the very foreseeable future.” When they raised this issue in
the Court, ICE released four detainees and removed one to an unnamed place
before the Court could inquire. ICE can and has re-detained Somalis periodically despite the fact that the Somali Permanent Mission continues to state
that it cannot issue travel documents. Thus, without the court’s protection these
Somali’s continue to live in fear of arbitrary, indefinite detention. Ibrahim, who
submitted to the Court the same letter from the official at the Somali Permanent
Mission to the United Nations stating that travel documents would not issued,
was the only one of the five Somalis to be removed. ICE put Ibrahim on a plane
leaving the United States before the Court reviewed his case. Because the Court
does not require ICE to submit proof of travel documents or even the country to
which a detainee was deported, we have no way of knowing to which country
Ibrahim was deported.