Mohammed Abdalla-Omran’s efforts to make a new life for himself in the United States were abruptly disrupted in August 2012, when Immigration and Customs Enforcement agents showed up at his workplace in New Hampshire. An Egyptian citizen, Abdalla-Omran was arrested on an outstanding warrant for overstaying a tourist visa. His arrest triggered a legal odyssey in which his resistance to the agency’s attempts to deport him would keep him stuck in the indefinite limbo of immigration detention for years.
In 2015, he was convicted on federal charges of failure to depart after resisting two attempts by ICE to deport him via commercial flights out of Louisiana’s Alexandria International Airport. On both occasions, Abdalla-Omran said, he refused to board the plane. After serving a six-month sentence, he was transferred back to a privately run ICE detention facility in Louisiana.
While it’s unclear how many people remain in ICE custody after resisting deportation, Abdalla-Omran’s case points to the much broader issue of immigration detention with no end in sight — he is among a hidden population of detainees who are effectively forever prisoners of the agency. ICE declined to provide current data about the number of people held in prolonged detention, but in fiscal year 2015 — during which ICE detained more than 355,000 people — some 3,166 of them had been held for more than a year, including 169 for more than three years, 32 for more than five years, and five for more than eight years.
That data, obtained through public records requests by the Transactional Records Access Clearinghouse and analyzed as part of a forthcoming article in the Southern California Law Review, also reveals that those detained in for-profit detention centers were held the longest. Among those detained longer than five years as of 2015, 10 were eventually deported, nine remained in custody at the end of the year, four were released on bond, and one died.
Ahilan Arulanantham, legal director at the American Civil Liberties Union of Southern California, said that using the word “detention” in the immigration context is deceiving. “Detention usually has a very short-term connotation to it, like after-school detention or even in the criminal context, detention is prior to arrest,” he told The Intercept. But in practice, Arulanantham argued, immigration detention is incarceration without a criminal process.
“It’s just a parallel system of imprisonment without trial that we have operating in the country,” Arulanantham said. “And it’s huge.”
Under ICE’s own legal mandate, the agency can only detain individuals “during the pendency of removal hearings or to effectuate their removal.” ICE must release anyone it has held longer than six months after a final removal order is issued unless the person is deemed a threat to public safety or there is “significant likelihood of removal in the foreseeable future.” But that doesn’t apply to individuals like Abdalla-Omran, whose failed deportation is “due to their own actions,” an ICE spokesperson told The Intercept.
According to the agency, “Mr. Abdalla has failed to comply with multiple attempts to execute his removal order, and he was criminally convicted in U.S. District Court for the Western District of Louisiana in February 2015 of obstructing two attempts to remove him from the United States.” The spokesperson said the agency couldn’t provide further detail but that obstructing removal implied “physical resistance.”
Most people held in prolonged immigration detention are there because they are fighting their cases, and the U.S. Supreme Court recently ruled that these individuals do not have the right to periodic bond hearings while their cases move through a chronically slow court system.
“Our immigration courts are really backlogged; until their cases come up and come to a conclusion, they have to stay in detention for that period of time,” said Emily Ryo, an associate professor at the University of Southern California Gould School of Law and co-author of the forthcoming study. “If they are removed, that can happen pretty quickly. You can be removed because you don’t have any form of relief available or just because you don’t want to be detained and you know that if you try to fight, there’s a long way ahead.”
“In some ways, detention serves as a deterrent for people who are seeking relief who might actually have legal relief available to them.”
But there are also many detainees with final removal orders whom the U.S. government is unable to deport, usually because they come from countries with which the U.S. has no repatriation agreements, or countries at war with no functioning government.
Because immigration proceedings are civil, not criminal, those held in immigration detention have no right to court-appointed attorneys — and many end up voluntarily delaying their cases, and thus extending their time in detention, while they try to come up with funds to hire private representation.
Another ICE spokesperson told The Intercept that “average length of stay depends on several factors,” including duration of immigration proceedings and appeals, and whether an individual is in possession of the necessary identity and travel documents. “Ongoing case processing and appeals and effectuating difficult removals are the main reasons for longer detention stays,” the spokesperson added. “However, some aliens do not comply with their removal orders in various ways, such as refusing to sign documents or board aircraft.”
Up to 40,000 men, women, and children are held in immigration detention every day. ICE estimates the number of detained will jump to a daily average of more than 50,000 this year — and has asked Congress to boost its budget accordingly.
Keeping someone in immigration detention costs an average $126 a day, and critics have noted that it is no coincidence that, in a system in which some 70 percent of detainees on any given day are held in private facilities, both the number of the detained and the duration of detention are growing. “That incentive to make profit has really driven immigration detention in recent decades,” Ryo told The Intercept. “It’s not really in our best interest to hold people who don’t need to be confined in this way, that can be released into the community while they’re waiting for their cases.”
Sylvester Owino, a Kenyan man who spent nearly a decade in ICE detention before finally being released on bond in 2015, wrote in a recent op-ed that “immigration detention is actually a civil form of prison.”
“For those who haven’t been detained and don’t know anyone in detention, it’s easy to think, ‘OK, it’s just detention; they hold you there, they process you, and then you’re out,’” he wrote. “You aren’t even told when you’ll be released, or if you will be released.”
“What this means is that people like me languish in this system, sometimes for months or even years,” he added. “I can’t get those years of my life back, or see my parents, who both died while I was detained by ICE.”
In fact, detention stays are getting longer. Data provided by Human Rights Watch from 2011 through 2014 shows that the average length of time ICE detainees spent in immigration detention over that period was 36 days. In 2015, the average detention duration was 39 days, according to the forthcoming study, and so far in 2018, it has been 40.5 days, according to ICE.
But the averages conceal wide disparities in individual stints in detention.
“In a civil detention system where people are not being charged with crimes, ICE held tens of thousands of noncitizens for prolonged periods,” Clara Long, a senior researcher on immigration and border policy at Human Rights Watch, said of the 2011-2014 period. “In the most egregious cases of prolonged detention, ICE held 437 people for three to four years, 71 people for five to 10 years, and another nine people for over 10 years.”
The U.S. Supreme Court considered the fate of individuals held in immigration detention for prolonged periods in two landmark cases. In 2001, the court ruled that individuals whom the government was unable to deport could not be held indefinitely. The case, Zadvydas v. Davis, was brought by Kestutis Zadvydas, a man born of Lithuanian parents in Germany who was not a citizen of either country. When the U.S. ordered him deported, neither country would take him.
There are also a handful of countries to which the U.S. at times has had trouble deporting people, including Cuba, Cambodia, Vietnam, Laos, Somalia, Iraq, and Afghanistan, according to the ACLU’s Arulanantham. Other countries, like China, are often slow to verify the nationality of people the U.S. has sought to deport there.
But most of those facing extraordinarily long detention are stuck in ICE custody while fighting their deportations.
While some are able to do so while free on bond, the Supreme Court ruled in February that detained immigrants don’t have a right to periodic bond hearings. That ruling — Jennings v. Rodriguez — will likely mean that more people will remain in detention longer, advocates warn. In the Central District of California, where Alejandro Rodriguez was the main plaintiff in a class-action lawsuit filed by the ACLU, of 3,000 people held in detention on average every day, up to 15 percent were held longer than six months, according to Arulanantham, one of the attorneys who brought the suit.
“If you want to make any kind of argument about why you shouldn’t be deported, it takes months to litigate that,” said Arulanantham, adding that if either side decides to appeal, “then you’re talking about over a year, routinely, even multiple years.”
Rodriguez was released after being detained for more than three years when the lawsuit was filed — but his actual immigration case, which he ultimately won, lasted seven years. Another client of Arulanantham’s was detained for seven years before winning his case. And the legal cases of people who are fighting deportation but are not in detention “routinely take longer than that,” said Arulanantham, adding that the longest case he knew of lasted more than two decades.
“A lot of litigation takes years,” he added. “It’s just that you don’t expect that people will be locked up while that happens.”
Abdalla-Omran claims he was subsequently interrogated by ICE and FBI agents who gave him two options: become an informant spying on Middle Eastern communities in the U.S. or face deportation back to Egypt.
Such an offer wouldn’t be out of line with FBI tactics. Previous reporting by The Intercept shed light on the FBI’s use of immigration status to pressure individuals from Muslim-majority countries to become informants, and the bureau has reportedly leveraged procedural delays and the threat of deportation to persuade people to cooperate.
Abdallah-Omran said he couldn’t bring himself to accept the offer. “I said, I have no problem telling them about anything bad that is going to happen if I know of it,” he recalled. “But I would not help them entrap people and then get them prosecuted and put in jail, only because I convinced them to plan a bad action.”
The FBI declined to comment for this story. A spokesperson for ICE said Abdalla-Omran’s allegation was “not something we would be able to confirm or deny.”
Soon after his arrest, Abdalla-Omran was charged with falsely claiming citizenship in order to get a job. His case grew even more convoluted when an ICE agent claimed in a court filing that Abdalla-Omran’s roommate had reported that he had PDF files on his laptop about how to build chemical and nuclear weapons. These allegations were especially provocative given that Abdalla-Omran had been employed at a turbine manufacturing company that worked on contract with several U.S. government agencies. Abdalla-Omran claims these allegations were an attempt to smear him after his refusal to become an informant. Contacted for comment by The Intercept, his former roommate declined to discuss his case or the allegations against him. Abdalla-Omran has never been charged or convicted of any crime related to national security. Several months after his arrest, the government dismissed the false claim of citizenship charges.
In February 2014, Abdalla-Omran was charged with two counts of failure to depart for resisting ICE’s efforts to deport him on commercial flights in June and July 2013. He was convicted in February 2015 and served a six-month sentence before being returned to ICE custody. Throughout the years he has spent in detention, Abdalla-Omran says that he has never received a bond hearing.
“The fact that Mohammed was charged with a federal crime for ‘failing to depart’ is extremely disturbing because prior to this charge, he had no criminal record,” said Christina Mansfield, a supporter of Abdalla-Omran’s and co-executive director of the advocacy group Freedom for Immigrants. “Our broken immigration bureaucracy made Mohammed into a criminal to justify his indefinite imprisonment rather than using common sense and discretion in his complicated and unique case.”
“If the government cannot remove him, they should release him immediately on humanitarian grounds,” Mansfield added.
Ryo, the USC law professor, argued that prolonged detention and the labyrinthine immigration court system have undermined detained individuals’ confidence in the legitimacy of the U.S. justice system. She said that among detainees she surveyed about their experiences in detention, even those who had previously served time in prison said that immigration detention was worse.
“A lot of people respond that immigration detention is harder precisely because they don’t know the end point,” she said. “Even for people who aren’t detained four, five, six years, this form of confinement is extremely hard for them psychologically, emotionally, mentally, and physically. It’s almost a form of torture.”
The years he has spent behind bars have taken a psychological toll on Abdalla-Omran. In the summer of 2015, he received a call from his brother in Egypt informing him that his father, who he had last seen in 2008, had passed away. Over the course of his confinement, Abdalla-Omran says he has attempted suicide and gone on hunger strike twice to protest his detention, as well as the abusive treatment he says he has suffered in ICE custody. He has also filed a prolific number of lawsuits and written to members of the Senate pleading for attention to his case and what he describes as the “hate, bigotry, and discrimination” he has experienced since his arrest.
“I know I am not the only person whose rights they have violated in this way. Other people gave up easily, but I decided that no matter how long it takes, I will keep fighting the injustices they have done to me only because of my name and ethnicity,” he told The Intercept. “It’s frustrating that after all these years that I have been in detention without due process, nobody has been held accountable for my treatment.”
Update: May 14, 2018, 2:45 p.m.
After The Intercept reached out to ICE with questions about Mohammed Abdalla-Omran’s case, he called the Freedom for Immigrants national hotline to say that he had been transferred from Louisiana to a detention facility in Arizona, where he was told that he would be removed Monday or Tuesday on a chartered flight.
“ICE’s calculated retaliation is meant to silence individuals like Mohammed who are willing to speak up and challenge these inhumane practices,” Freedom for Immigrants’ Christina Mansfield told The Intercept. “Their ultimate objective is to keep the public in the dark about the government’s impunity behind prison walls, while at the same time enriching private prison corporations, like the GEO Group, that have profited from Mohammed’s prolonged detention.”
Citing security concerns, an ICE spokesperson declined to confirm whether a removal attempt was scheduled. “That said, in general, as ICE has attempted to remove Mr. Abdalla numerous times, the fact that ICE may generally attempt to continue to do so should not be a surprise,” the spokesperson added. “The suggestion that any such attempts would be in response to a news article rather than the continuation of the agency’s ongoing attempts to enforce a judicial order would not be accurate.”
Update: May 16, 2018, 11:50 a.m.
On Wednesday, a spokesperson for ICE confirmed to The Intercept that Abdalla-Omran had been deported. “It was already planned prior to you submitting questions,” the spokesperson added. The Intercept could not immediately reach Abdalla-Omran.
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