When Rebwar Hassan walked out of the Immigration and Customs Enforcement detention facility in Georgia on December 16, his 4-year-old daughter’s elated giggles quickly turned to sobs. She ran to him, and they embraced for the first time in 18 months.
A few days later, Basam Petros waited at a 7-Eleven near his home in New Baltimore, Michigan. His 10-year-old daughter thought that she and her mother were meeting a family friend. When she spotted her dad from across the parking lot, she darted to him, and buried her face in his big yellow T-shirt.
Later that week, in nearby Shelby Charter Township, Hadeel Khalasawi disguised himself as Santa Claus and sat in his living room. His 7- and 8-year-old sons—who, for the second year in a row, insisted that all they wanted for Christmas was to spend the holiday with their dad—weren’t sure what was going on. Then Khalasawi took off his hat and beard. “Where were you?” his youngest asked through tears and a dogpile of hugs. “Habibi,” Khalasawi replied, “never gonna let you guys go again.”
Hassan, Petros, and Khalasawi are a few of the roughly 350 Iraqi Americans who spent months—in many cases well over a year—locked up in ICE facilities. Since being apprehended in raids beginning in the summer of 2017, they have endured a grueling saga of incarceration and legal precarity.
Since targeting Iraqis—many of whom have lived nearly their entire lives in the United States—ICE has embarked on a deportation campaign involving coercion, “demonstrably false” federal-court declarations, and outright lies. As a result, hundreds of parents, siblings, breadwinners, and caregivers have languished behind bars. And now, with legal battles threatening their right to have their cases reviewed, their futures are once again in limbo.
For years, the United States has been unable to deport all but a few Iraqi nationals. Since the end of the Iraq War, the US government has considered Iraq a “recalcitrant” country, meaning the Iraqi government has been unwilling to issue the necessary paperwork for ICE to remove those individuals. “Forced repatriations,” as Iraqi officials often call deportations, are a logistical nightmare for Iraqi bureaucracy, and they present ethical and humanitarian dilemmas for an unstable nation where returnees might be at risk of violence.
In its second term, the Obama administration tried to convince Iraq to take back its deportable nationals. In 2015 and 2016, ICE and State Department officials met with Iraqi officials no less than seven times to address the issue. When Trump entered office, his administration immediately sought to get Iraq—along with other recalcitrant countries, like Cambodia, Vietnam, and Eritrea—to change its stance.
After Trump issued his first “travel ban” in January 2017—barring nationals from seven Muslim-majority countries, including Iraq, from entering the US—the State Department used the executive order to pressure Iraq into cooperating. According to internal ICE briefing materials, uncovered via litigation by the American Civil Liberties Union, US officials told Baghdad that accepting one flight of deportees “would be an encouraging sign of progress on an issue that could help remove Iraq from sanctions in future Executive Orders.”
The Iraqi government acquiesced on one small flight, and issued one-way travel documents for eight people, who were deported in April 2017. After a federal court struck down his initial Muslim ban, Trump issued a new one, and this time Iraq was exempted.
Trump administration officials went public with the quid pro quo, claiming that Iraq’s side of the deal was more or less permanent. “Iraq is no longer one of those countries [included in the travel ban] because…Iraq has agreed to the timely repatriation of its nationals who are subject to final orders of removal,” an unnamed Department of Homeland Security official told reporters on a conference call. And indeed, per a State Department cable, it appears that, at the time, some top Iraqi officials were open to facilitating more deportations. But there were still details that needed to be sorted out, and weeks passed with little progress made in the negotiations.
In late May 2017, ICE set June 28 as the date for the next deportation flight, even though it wasn’t certain that Iraq would take them in. Then, on June 7, the Iraqi embassy in Washington, DC, issued what one ICE officer described as a “blanket denial” for two-dozen deportee travel documents. Reasserting Iraq’s long-standing position against forced repatriations, the embassy official wrote that each applicant “should express orally and in writing his willingness to return to Iraq voluntarily.”
Four days later, ICE upped the ante.
On Sunday, June 11, 2017, ICE started the raids in Michigan. Agents detained 114 people—mostly men from the Iraqi Christian community in metro Detroit, who immigrated to the United States legally but were convicted of crimes that made them deportable.
Community leaders immediately organized, setting up an impromptu information center and legal clinic in a local school. They enlisted experts—most notably from the ACLU of Michigan—who helped them sue to stop the deportations on the grounds that Iraq wasn’t safe for the would-be deportees. By June 26, lawyers won a temporary restraining order blocking the removal of more than 1,400 deportable Iraqis living in the United States.
During this ordeal, community leaders and lawyers working on the case were under the impression that ICE was ready to put the detainees on a plane to Baghdad at any moment, and that a court order would be the only thing keeping them on US soil. “They told us that there was a plane leaving, and that the only reason that the plane didn’t leave was because of our stay,” Nadine Yousif Kalasho, a lawyer and one of the community organizers, told The Nation.
In reality, as the legal battle ensued and the June 28 takeoff date approached, ICE and the State Department were still haggling with a reluctant Iraqi government. Two days after the initial raids, a US consul general in Baghdad e-mailed ICE to report that one Iraqi official “was very concerned that anyone deported is truly an Iraqi.” Five days later, another consul general stated that the Iraqi ambassador to the United States, Fareed Yasseen, was grappling with humanitarian concerns.
“What happens to someone who may have committed a crime, fulfilled the sentence, been released and has since perhaps married and has [American citizen] children and/or spouse?” Yasseen reportedly asked. “Is there any allowance for this?” It’s unclear whether the ambassador realized that he had just described circumstances typical of an Iraqi arrested by ICE.
Hadeel Khalasawi, the father in the Santa costume, had a happy life in Michigan. Like thousands of Iraqis fleeing political turmoil, he immigrated to the United States with his parents and siblings in the late 1970s, when he was 5 years old. He went to school, grew up, got married, and bought a home, where he’s raising three children—a daughter and two sons. He and his wife, Summer, owned and ran a Middle Eastern restaurant, where customers raved about the shawarma and Iraqi salad.
In 1993, he pleaded guilty to a felony-assault charge, and spent almost seven years in prison. Since then, Khalasawi has been technically deportable. But until ICE picked him up, immigration authorities had left him alone, letting him live his life under “orders of supervision.” On that Sunday in June 2017, ICE agents came to his house and knocked on his front door. They told him they needed to take him in for fingerprinting. That, of course, was a lie.
After ICE arrested and detained Khalasawi, his family tried to remain upbeat, defiant. Summer and their daughter, who graduated high school while her father was locked up, often took the now-7- and 8-year-old boys to rallies and protests against the deportations. But as the weeks wore on, Khalasawi’s absence took its toll. The boys became depressed; they would cry all the time, and they started struggling in school. Summer had a hard time keeping up with work at the restaurant. “Everything went downhill,” Khalasawi said.
His detention was especially hard on his family when they considered the threats he would face if ICE succeeded in deporting him. Like most of the detainees from Michigan, Khalasawi is Chaldean—part of a Catholic-affiliated sect of Christianity indigenous to Iraq. He has the Mother Mary tattooed on his chest, and, like most Chaldeans, he speaks Aramaic rather than Arabic. Since the chaos of the 2003 US invasion of Iraq, and especially since the ensuing civil war in 2006–08, Christians and other religious minorities have been subjected to horrendous persecution. Between 2003 and 2015, some two-thirds of Iraqi Christians fled or were killed. Even with the fall of ISIS, rogue militias terrorize minorities across the country. “If I was deported, they would kill me for sure,” Khalasawi said.
With the ACLU’s temporary restraining order in place, the date ICE had set for the deportation flight—June 28, 2017—came and went. But the agency was undeterred.
ICE officials rescheduled the flight for July 25, but June’s cycle of events more or less repeated itself. ACLU lawyers and community leaders, still under the impression that ICE planes were ready to take off as soon as the restraining order expired, filed more motions, eventually winning a preliminary injunction preventing ICE from deporting the Iraqis until they could argue their individual cases in front of an immigration judge. Meanwhile, the Iraqi government continued to express humanitarian concerns, and ultimately, as one internal ICE e-mail put it, “there was no defined way forward.”
An ICE memo dated July 19 outlines the agency’s frustrations: “ICE believes that it has exhausted all means at its disposal to secure cooperation from the Government of Iraq.”
As time passed, negotiations between ICE and the Iraqi government deteriorated further. In a December meeting, Homeland Security and State Department officials wrested out of Iraqi officials some vague commitments to jump-start the travel-document-issuing process, but the diplomats kept expressing concerns about deportees’ fears of returning. During a follow-up meeting in January, Iraqi officials reportedly started to argue with each other about the ethical and legal implications of cooperating with deportations.
Then, in March 2018, Baghdad issued a formal letter that reasserted its policy to “refuse the principle of forced return of Iraqis” because it “conflicts with humanitarian laws and principles.”
“Kindly inform all our missions to coordinate with [all countries] to reduce this serious phenomenon that affects Iraqis abroad,” the letter said.
During these months, some arrested Iraqis won bond hearings and were released from ICE custody while the case proceeded. But over 100 remained in immigration detention. Lawyers for the ACLU fought for their release by citing a 2001 Supreme Court decision declaring it illegal for immigration authorities to indefinitely detain someone if their deportation order is not possible to execute. To determine whether this was the case with Iraq, a federal judge relied on statements from ICE officials, who, despite ICE’s internal admissions of defeat, told the judge—falsely—that the Iraqi government was set to cooperate.
A day after the “exhausted all means” memo was published, John Schultz, an ICE deputy assistant director, submitted a declaration stating that “Iraq has agreed…to the timely return of its nationals that are subject to final orders of removal.” Months later, on November 30, Schultz claimed that “ICE expects to receive travel documents for all individuals that ICE has requested to remove to Iraq.” And in December 2017, another deputy assistant director, Michael Bernacke, claimed that “ICE believes” that Baghdad will “permit the entry of detained Iraqi nationals…if the injunction is lifted.” These statements helped the government fend off the ACLU’s motions and keep the Iraqis in custody.
After Baghdad maintained its stance against forced repatriations, ICE resorted to threats to make deportations seem “voluntary.” As outlined in the ACLU’s court filings, as well as in a report from Human Rights Watch, ICE transferred around 40 Iraqis in May 2018 to Stewart Detention Center in Lumpkin, Georgia, where agents facilitated pre-deportation interviews with Iraqi consular officials. Before, during, and after the interviews, several detainees claim, ICE and consular staff attempted to coerce them into signing an Iraqi government form asserting one’s “desire to return voluntarily to Iraq.”
Two detainees claim that, while being taken to an airport to fly to Georgia, ICE officers told them that they were being deported to Iraq. Once in Stewart, others claim that ICE, with the help of some Iraqi consular officials, threatened them with prosecution or prolonged imprisonment if they didn’t sign the voluntary-repatriation form. One detainee said that an Iraqi official told him that, if he didn’t sign, he “would be in jail for the rest of his life.” Another recalled that an American official assured him that he “would be sitting in jail” until he was deported. Another said that an ICE officer summoned him and told him that, if he didn’t sign, he would be prosecuted for failing to comply with orders.
“Many of my fellow Iraqis told me that they signed the form…because ICE told them if they did not sign, they would definitely be kept in detention until the US government could send them back,” one detainee said.
Most of the Iraqis at Stewart, as well as a few in other detention centers who just wanted the whole ordeal to be over, ended up signing the form. From June to October, Iraq issued travel documents for those who had signed, as well as for a few of those who didn’t, and ICE made arrangements for some of them to be deported.
According to Margo Schlanger, a law professor at the University of Michigan on the team counsel for the class-action case, at least 27 Iraqis have been deported since June 2017.
The Iraqi embassy in Washington, DC, didn’t respond to The Nation’s requests for comment. An ICE spokesperson said that “ICE is unable to comment at this time due to ongoing litigation.”
It took roughly a year and a half for ICE’s illegal campaign of deception and intimidation to be revealed. In January 2018, a federal judge permitted the ACLU to request internal ICE communications about the Iraqi government’s willingness to cooperate with the deportation process. But it wasn’t until October that ICE released enough of its documents for the court to make its determination—that “Iraq will not take back individuals who will not voluntarily agree to return,” and thus there is no legal justification for keeping Iraqis detained. Through those 10 months, ICE missed at least half-a-dozen court-imposed deadlines, and only ended up releasing a fraction of the tens of thousands of pages the ACLU requested.
“The Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations,” the judge declared. He ordered ICE to release almost all of the remaining detainees by December 20, 2018.
But that victory was short-lived. On the same day as the last eligible detainees were released, a panel of judges from the US Court of Appeals for the Sixth Circuit decided in a 2-1 ruling that the original preliminary injunction—issued by a federal judge in district court a year and a half earlier—was invalid.
The judges ruled that the district court did not have the jurisdiction to bar ICE, even temporarily, from deporting Iraqis. Rather, they said, only the immigration courts, under the purview of the Department of Justice, have that power.
This procedural argument has huge ramifications. The backlog in the immigration courts recently surpassed 1 million cases; it can take months or even years to get in front of an immigration judge. This is why the district-court judge issued the injunction in the first place: He recognized that he did not have the power to cancel deportations, but immigrants have a right to have their cases reviewed, and with so much on the line, he determined that they should be allowed to exercise that right before ICE deported them.
A friends-of-the-court briefing filed by a group of habeas-corpus scholars put it succinctly: Deporting immigrants “to a country where they will face persecution, torture, or murder before their grounds for opposing removal can be heard” would be a “textbook example of rendering judicial relief ineffective.” The United Nations Special Rapporteur on Torture has also weighed in, saying that removing the Iraqis without allowing them to argue their cases for relief would put the United States at risk of violating international law against deporting people to places where they may be in danger.
“It’s extremely concerning,” Miriam Aukerman, an ACLU lawyer on the team counsel, told The Nation. “Basically, what the Sixth Circuit said is that the people who are most at risk—the people who are facing torture or death—those are precisely the people who cannot be protected by the federal courts.”
The ACLU has filed a motion to reopen the case, and hopes that the Sixth Circuit will take it up again with the full court.
According to Aukerman, most of the Iraqis who have argued in front of an immigration judge have won relief from deportation. But most are still waiting for a court date. The Iraqi government’s most up-to-date position is that it “won’t cooperate with any government trying to forcibly return” Iraqis, but with consistent pressure from ICE and the State Department, it’s unclear how firm that position is. And with the Sixth Circuit panel’s ruling, Iraqis’ right to argue their cases, and thus their hopes of staying in the United States, could be in jeopardy.
It’s hard for Khalasawi to describe how much he’s lost since ICE knocked on his door a year and a half ago. For one, as a result of his 18-month incarceration, he and his wife lost their restaurant. He said he’s been looking for work, but finding a job is almost impossible since ICE rescinded his employment authorization.
Emotionally, too, the family struggles with the trauma of his absence, as well as the possibility that he’ll be ripped away from them once again. Summer wants to sell their house, because just looking at the front door reminds her of the Sunday morning ICE agents took her husband away. But even if they move, there will still be physical reminders of his precarious state—like the GPS ankle monitor ICE forces him to wear. He tells his younger kids that it’s a heart monitor. “I don’t want to expose them to this kind of negativity,” he said.
Khalasawi was able to argue his case in immigration court, but results vary widely from judge to judge. Even after hearing expert testimony on the dangerous conditions for Christians in Iraq, a Detroit-based judge denied him relief. He’s now petitioning the Board of Immigration Appeals, the appellate level of the immigration-court system, but it could be months before the board is able to hear his case—and depending on how the Sixth Circuit case goes, he may not have that much time.
“It doesn’t make sense what they’re doing,” he said. “ICE destroys lives.”