Columnist Bill Newman: Ruling may aid local Iraqi detained by ICE

  • Niberd Abdalla is being held in the Suffolk County House of Correction in Boston under the control of Immigration and Customs Enforcement after being detained during a regular meeting with ICE on June 8. GAZETTE FILE PHOTO

Friday, January 05, 2018

Federal District Court Judge Mark Goldsmith has just doubled down on freedom.

Goldsmith is the judge in Detroit who in July 2017 stopped Immigration and Customs Enforcement (ICE) from precipitously deporting over 1,400 people to Iraq. He ruled that those individuals, because of their ethnicity and religious beliefs, could well “face persecution, torture and death” in that country. Therefore, they were entitled to a hearing before an immigration judge to contest their deportation.

Then, on Jan. 2, Goldsmith considered the plight of those same individuals who are indeed challenging ICE’s plan to deport them to Iraq but who, as they wait for their hearings, have “languished in detention facilities — many for over six months — deprived of the intimacy of their families, the fellowship of their communities, and the economic opportunity to provide for themselves and their loved ones” with no end in sight.

The judge ruled that those detainees were entitled to a bond (essentially a bail) hearing to decide if they should be released while their cases wend their way through the immigration court system. His decision rests on the fundamental due process precept, guaranteed by the Fifth Amendment, “that no person should be restrained in his or her liberty beyond what is reasonably necessary to achieve a legitimate governmental objective.”

In immigration proceedings, the government indeed has legitimate objectives — ensuring public safety and having reasonable assurance that the person, if released, will not flee. Those interests can be served, Goldsmith wrote, by having an immigration judge sort out who deserves to be released and who does not. “Our legal tradition rejects warehousing human beings while their legal rights are being determined without an opportunity to persuade a judge that the norm of monitored freedom should be allowed.”

The decision in that nationwide class-action lawsuit, brought by the ACLU, brings us to Hampshire County and NiberdAbdalla, who is a member of the class covered by this ruling.

Abdalla is 58 years old. He has been in the United States for more than 40 years, having lived for two of those four decades in Hampshire County.

The legal background: Abdalla was a free person without adverse interactions with immigration authorities for most of those 40 years. Over time, immigration policies changed and in 2010 authorities briefly detained him and, upon his release, instructed him to report to that agency on a regular basis.

He did that. He reported to ICE twice a year for seven years. He never missed an appointment. There were no problems.

But his appointment last June 8 was different. That day, ICE officials took him to a back room, handcuffed him and placed him behind bars, and he has been in the Suffolk County House of Correction in Boston ever since.

He had done nothing to precipitate his detention. What had changed was that, according to the U.S., Iraq agreed to accept back its nationals in exchange for the Trump administration removing Iraq from the list of seven countries listed in his Jan. 27 executive order, generally referred to as the “Muslim ban.”

Some personal information: Years ago, Abdalla was unable to marry the woman who is the mother of his son because their parents disapproved. Finally, on Thursday in the Suffolk County jail, he and his beloved, Ellen McShane, were married. In attendance were her son and Niberd’s lawyer, Stewart “Buz” Eisenberg, a cooperating attorney with both the ACLU of Massachusetts and its Immigrant Protection Project of Western Massachusetts. The Rev. Margaret Sawyer, the initial IPP coordinator and an organizer with the Pioneer Valley Workers Center, presided.

Based on the recent Detroit decision, Abdalla’s attorneys — Eisenberg, Northampton-based immigration law specialist Megan Kludt, and ACLU attorneys in Boston — expect that they soon will be able to file a request for his release on bond. And Abdalla is an excellent candidate for release.

He fled Iraq to escape Saddam Hussein’s persecution. As a Kurd, if deported to Baghdad where he knows no one and doesn’t speak the language, Abdalla would be in grave danger. Having lived almost all his life in the United States, he is an American citizen in every respect except on paper. His wife is U.S. citizen. He enjoys enormous support from the community, has no criminal record, suffers from serious medical conditions that cannot be adequately treated in Iraq and has an unblemished record of always reporting to ICE.

His lawyers will lay out these facts at the bond hearing. A judge will decide whether he will be released. Wish him luck.

And hope that Goldsmith’s order remains in effect and is not stayed or overturned by a higher court.

Bill Newman, a Northampton lawyer, is director of the Western Regional Office of the ACLU of Massachusetts, the parent organization of the ACLUM’s Immigrant Protection Project of Western Massachusetts. He can be reached at opinion@gazettenet.com.