By Paul Natinsky
In the spring and summer of 2017 Immigration and Customs Enforcement (ICE) rounded up 114 Detroit-area Iraqi nationals and detained them to await deportation. All came to the United States legally as green card holders. All committed crimes and completed their jail sentences or probationary periods. All received final orders of deportation from an immigration court and remained in the United States in a sort of limbo. They do not have green cards granting permanent resident status, but remain here under protection because sending them back to a violently unstable and politically volatile Iraq would endanger their lives.
“When you commit a crime, they take away your green card and then you can apply for asylum or some sort of temporary status, but none of these people did that because they did not think they were in immediate danger (of being sent back to Iraq),” said criminal attorney Clarence Dass, who represented several of detainees.
That was back in the ‘80s and ‘90s when Iraq was war torn and deportations to the region were non-existent, he said. But changes in immigration policy under the current administration have changed that, and the detainees were slated to be returned to Iraq based on final orders of deportation that were in some cases 20 or 30 years old.
For many of those living in this ambiguous status, the crime they committed, often in their youth, was the only serious legal transgression of their life, said Dass. Many married, had children, worked and ran businesses. Despite not having status as permanent residents, they pay taxes and check in regularly with an immigration officer.
“They requested relief from deportation (after being convicted and serving their sentence) and an immigration judge didn’t agree and issued a final order of deportation,” said immigration attorney Eman Jajonie-Daman, who represents many Iraqi immigrants. “They lost their case, they lost their green card, but they remained living in the community because our country was not deporting people back to Iraq for years and years. They lived here and went on an annual checkup with an immigration officer on an order of supervision. Finally, in 2017 ICE received orders to pick up those Iraqis with final orders and deport them.’”
Into this situation stepped the American Civil Liberties Union with a class action lawsuit to secure the release of those being detained and preventing them from being deported, allowing them time to petition immigration courts to reopen their cases.
The injunction protects the former detainees as their cases wind their way through the immigration court system. This is where things get complicated. Those facing final orders could experience many different outcomes, ranging from getting their green cards back (and ultimately gaining a chance at citizenship), to being slated once more for deportation.
Pardons Not Enough
In a well-publicized move, then-Gov. Rick Snyder pardoned seven of the detainees in December, effectively expunging the crimes that led to them receiving final orders of deportation. But immigration law is federal law, said Jajonie-Daman, and those convicted of drug crimes and firearms violations are exempt from pardon protection.
Immigration law is strict and ever changing, said Jajonie-Daman. She said drug crimes in which the convicted serves fewer than five years are forgivable, but only if they occurred after a particular date. In other cases, if the crime is old enough, the length of sentence is not considered.
In some cases, huge changes in conditions in the country to which a person would be deported serve as a basis to reopen the case, cancelling the original final order of deportation, allowing consideration of permanent residence or protection from deportation.
“Once the case is re-opened you can file for any type of relief you might be eligible for at the time of the re-opening. A lot of us lawyers took advantage of that to try and get green cards back for some of these people, because of a change in the law,” said Jajonie-Daman. “I have two clients who after I got their green cards back they applied for citizenship and now they are U.S. citizens. They are now productive members of our community, where they were once detained and had one leg out the door.”
Not Everyone Will Win.
Renewed green card status will not be the outcome for everyone. Even after decades, some judges will rule against some immigrants and reinstate a final order of deportation. For those individuals, Jajonie-Daman said the key strategy will be employing the United Nations Convention against Torture (UNCAT, or CAT for short). CAT is an international agreement under which signatories refuse to deport immigrants to countries where they are likely to face torture. Developed by the United Nations in 1984 and put into force in 1987, CAT prevents sending anyone to Iraq from a country that has signed the accord.
Still, those who lose their bid to reestablish permanent legal resident status live with a Damoclean sword hanging above their head, never knowing when a change in American immigration policy will send them away from a country in which they have established lives over decades to an uncertain fate in a hostile land.
Hope Reigns Supreme
In 1999, Jajonie-Daman took one of the first CAT cases. “A client asked, ‘How likely am I to be deported?’ Conditions in Iraq since 1999 have spiraled downward. Since 1999 I have not seen a single government motion to take CAT away from an Iraqi. So when you have nothing, you take CAT and you are grateful,” she said.
The injunction is temporary and much for many of the immigrants in question depends upon court rulings, administration policies and changes in immigration law. Cases and appeals will take time to work through the courts. But for the time being, lives will not be further disrupted and people will not be sent into life-threatening environments.
“The ACLU is saving lives by giving people a chance to stay here under protective orders,” said Jajonie-Daman.