No Man's Land

Stuck in DHS Pergatory

A desperate man called me in April this year from a detention center in Louisiana. We’ve had many desperate people calling from the more than 10 different facilities scattered throughout Louisiana that house immigrant detainees. The pandemic had just flared up and people were panicking. Something about James’ case was different.

James* is from Nigeria, but had been living in Louisiana with his US citizen wife for more than six years and they were in the process of applying for his residency. That process stalled when a person who was supposedly helping James with his living situation was charged with immigration fraud, and James was charged for having gotten caught up in the conspiracy. He was complying with the requirements of his criminal case until his wife threatened to kill him to cash out on the life insurance policy. She’d been violent towards him in the past, taken away his car and made him give her all of his money, and this time she shot at him with a gun. James tried to go to the police to make a report, but she intimidated him into recanting his statement. As someone not from this country and fearful of what might happen to him, he didn’t know what to do, so he took his car and drove as far as he could to get away from his wife - all the way to Canada.

When he got to Canada, he asked for asylum from his home country of Nigeria. The Canadian government welcomed him and accepted his application, but upon doing a background check, found that he had federal charges pending in Louisiana. He was detained in Canada for several months but was then extradited to the United States to attend his trial. In October 2019 last year, he went to trial, was sentenced to time served, given a small fine, and released….into ICE custody.

Why did ICE take custody of James?! Well, because he is a foreign-born person who does not have lawful status in this country. Upon being detained, James was given a letter stating that he was allowed to leave voluntarily to return to Canada, within 30 days. Every day for those 30 days James requested that he be allowed to purchase his ticket and travel back to Canada to continue his asylum application there.

But after 30 days, he received no replies from the ICE officer in charge of his case, except to say that too much time had passed for him to be detained without being charged with an immigration offense, so the ICE officer served him a Notice to Appear - a document that initiates immigration proceedings with the court. Once served, it took a month or so to actually have a court hearing scheduled with an immigration judge.

James was not allowed an opportunity to leave on his own accord back to Canada and had no recourse but to wait for his day in court. At his first hearing, the immigration judge asked him if he conceded to having attempted to enter this country without documentation. Of course he refused, being that he did not come here on his own, he did not seek entry into this country, he was transported here by the US Marshal through diplomatic channels so that he could answer for his criminal activity, which he already had. The government attorney, however, was not prepared to make an argument about the case and asked the judge for more time, which was granted.

The government attorney was not prepared for the second hearing. Or the third. Another two hearings were postponed because of a quarantine meant to stave off COVID19 in the facility. I submitted a Motion to Terminate proceedings with the immigration court and the judge gave DHS even more time to respond, but they didn’t bother.

Last week the immigration judge terminated the case and today I tried to set into motion James’ return to Canada. But I was informed at the end of the day that DHS plans on appealing the judge’s order to terminate. An appeal will add MONTHS to Jame’s detention, in a case where the judge found that he was not actually here to ask to stay in this country. If the appeal overturns the judge’s decision, it will be too late for James to apply for asylum in this country because he only has one year to do so. If the appeal says the judge was right, his pending case in Canada will likely have been closed because he was not able to attend his hearing.

James is stuck in No Man’s Land and while most government attorneys who work in the immigration court are trying as hard as they can to make sure that no one gets to stay in this country, in this case, the government attorneys are planning on forcing James to stay here and fight his case when he doesn’t even want to. An appeal will add at least six months of his continued detention where he has not pleaded to any violation of immigration law and has not asked for lawful admission into this country. If for any reason James doesn’t go to Canada, then DHS could just as easily institute a new case against him. Why wouldn’t they just do that? Because they are dysfunctional, if not outright cruel.

James was forced to come back to this country to answer for his criminal infractions, which he did. His continued detention is the result of an immigration system that makes no sense and deprives people of basic due process. James’ case is particularly egregious because he is literally being punished for being brought here by the US government. But so many other of our clients are calling us after they’ve been denied asylum by judges who make up their own rules and apply the law loosely. They call us not because they want us to help them to stay here, but because they’ve been waiting more than half a year to be returned to their countries. They too are stuck in No Man’s Land and even though we’re not always sure what to do, we always answer the phone.

~Casey

*James gave me permission to write about his story.