UPDATE—Tuesday, Jun. 7 am: On May 26, after 559 days in detention, Hisham Shaban was released. His lawyers, confounded by ICE’s unexpected move, suspect that public pressure and their own insistence on continuing to fight for their client gave the government few options. “They couldn’t articulate a reason to keep him [detained],” Liban Yousuf, one of his attorneys, said. Shaban has not been granted legal status, is still in Removal Proceedings, and is still officially “stateless.” He was set free under Supervised Release, which means that ICE is officially still trying to remove him, and that he is left in a sort of indefinite legal limbo. Conditions for Supervised Release include having to check in periodically with ICE officials, having to notify them by letter whenever he leaves the state, and not being able to travel outside the country.
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Beginning in besieged Gaza, through Turkey, Greece, Venezuela, Central America, and Mexico, Hisham Shaban Ghalia traveled 10,000 miles—flying, riding buses, walking, and even swimming—to get to the United States. But despite coming to this country to seek asylum from violence and hardship in the Gaza Strip, Shaban has been languishing for the past 16 months in an immigration detention center in Florence, Arizona. According to Immigration and Customs Enforcement (ICE), Shaban can’t stay in the country. But because of the peculiar legal and diplomatic tangle that Shaban finds himself in, he can’t be sent back home, either. That’s because, according to US law, Shaban has no home to be deported to.
Shaban’s asylum claim was denied last August, but ICE has neither deported him nor released him from custody. Shaban’s lawyer, Liban Yousuf, of the nonprofit Council on American-Islamic Relations, who began representing him pro bono only this January, filed a habeas corpus petition on February 20 (over six months after his asylum claim was denied) asking for Shaban to be granted supervised release, which, though it would provide no legal status, could allow him to work. While the petition is still being reviewed, ICE issued a “Decision to Continue Detention” on February 25, explaining that “ICE is currently working with the Government of Palestine” in order to remove him from US custody. But the fact that the United States does not recognize Palestine as a state has rendered this process difficult. In his case file, ICE documents refer to his home country only within parentheses, his citizenship listed as: “Stateless (Palestine).” Shaban told me, “I have a serious fear that I’ll spend my life here [in detention].” As of publication, he has spent 499 days behind bars.
“Everyone,” according to Article 15 of the Universal Declaration of Human Rights, “has the right to a nationality.” Palestine, in the early decades of the last century, was seen as a home for stateless Jews. Now, it is the Palestinians who are rendered stateless, who are searching for a recognition of their nationality, their home. Neve Gordon, author of Israel’s Occupation, explained the peculiar predicament of statelessness: “When a person is stripped of any connection to a state and all that remains is his or her being a human being, that is the moment when they need the most human rights, and they have no rights.”
Worldwide, there are an estimated 15 million stateless persons—what Vicent Chetail, professor of international law at the Graduate Institute of International and Development Studies in Geneva, called “a growing problem.” The United Nations High Commissioner for Refugees (UNHCR) however, not counting Palestinians in the figure, puts the worldwide number of stateless at 10 million. Chetail explained that due to “very restrictive legislation” for Palestinians requesting Refugee Status, “there are no other possibilities than to leave their country and enter into another one in an illegal manner.” (Asking for asylum, as Shaban did at the US border, however, is not illegal, according to both US and international law).
According to Article 31 of the UN 1951 Refugee Convention, relating to the Status of Refugees, no signatory country shall “impose penalties, on account of their illegal entry or presence, on refugees” who come from a territory where their life or freedom was directly threatened. Despite the provision, locking up asylum seekers, against Geneva Conventions, is standard practice in the United States, and elsewhere. “The problem,” Chetail explained, “is that under international law, detention should be a last resort, but in practice, they are using detention as a deterrent measure.”
There are no clear estimates as to how many stateless persons are in the United States. Between 2005 and 2010, according to statistics from the Executive Office of Immigration Review gathered in the UNHCR “Citizens of Nowhere” report, there were 1,087 asylum requests in the US from people listed as Stateless or “No Nationality.” And yet, “because of their vulnerability and lack of access to rights and privileges in the United States, it is believed that many stateless individuals in the country remain under-ground and hidden.” An ICE official told me, via e-mail, that “as of March 14, 2016, ICE does not have any individuals classified as stateless.” Shaban, however, listed by ICE as “stateless,” was in detention on March 14, and he still is.
Though Shaban cites economic hardship, high levels of unemployment, pollution, consistent blackouts, and hunger—a reality lived by nearly 2 million Palestinians in the Israeli-blockaded Gaza Strip—as reasons for fleeing his home, he has also suffered through extreme violence at the hands of both Hamas and Israel.
Shaban’s house was damaged by an Israeli rocket in 2008 during the Israeli military’s Operation Cast Lead. When I spoke with Jawad Chalan, a close family friend of Shaban’s who had fled Gaza with him, he told me that local Hamas officials acted like a mafia in their home town of Jabaliya, and that if Shaban returned, “He would get hurt. He would get killed.” Because of the presence of retired senior Hamas leaders, Jabaliya has been repeatedly shelled by Israel, whose forces have used “weapons inappropriate for urban areas.” In July 2014, during the US-backed Israeli siege, the same month that Israeli bombs killed 21 people in a Jabaliya elementary school, Shaban’s 4-year-old cousin, Yasmin Mohammed Mutawwaq, was killed by an Israeli bomb.
Shaban has known little beyond life as a refugee. His mother was a Palestinian refugee in Egypt, and Shaban was born in Saudi Arabia, where his father was temporarily working. None of the places he has lived granted him citizenship status. He lived through Hamas’s takeover of power in Gaza in 2007 and then Operation Cast Lead, during which, according to Neve Gordon, “Israel decimated the Gaza Strip,” turning large parts of Gaza into rubble, as well as destroying vital agricultural areas. The continuing blockade, Israeli officials confirmed in a Wikileaks released cable to the US embassy in Tel Aviv, was meant “to keep the Gazan economy on the brink of collapse without quite pushing it over the edge,” with the aim of having Gaza “functioning at the lowest level possible consistent with avoiding a humanitarian crisis.”
According to on the ground reports and basic statistics, the humanitarian crisis has not been avoided: In May of 2015, the World Bank reported that “Blockades, war and poor governance have strangled Gaza’s economy and the unemployment rate is now the highest in the world,” at 43 percent—and over 60 percent for youths. According to Sara Roy, a senior research scholar at the Center for Middle Eastern Studies at Harvard University, nearly 10 percent of children suffer from stunting (low height for age)—an indicator of chronic malnutrition. A United Nations report on Gaza in September of 2015 speculated that the region “could become uninhabitable in less than five years in wake of 2014 conflict and ongoing de-development.” Gordon described the people living in Gaza as “locked in the world’s biggest prison.” For Shaban, life had become unlivable.
Shaban fled Gaza in 2010 for Turkey, in search of asylum. From Turkey he was sent to the Kofinou Refugee Camp on the Greek side of Cyprus, where he first met a fellow Gazan, Mounis Hammouda. Opportunities in the Refugee Camp were almost as bleak as in Gaza. Shaban and Hammouda only ate twice a day. Hammouda told me there was no chance for employment: “No job, no school, no family.” They decided to leave Cyprus “to look for life.”
The men told me they were able to obtain visas to travel to Venezuela, where they remained for one week. From there they flew to Nicaragua, briefly found work, and met with a UN official who helped them obtain temporary visas. Despite the visas, they were detained and spent two nights in detention. In a hotel where they were living they met a Cuban woman, who they referred to simply as “Cuba,” and with her help (she spoke some English) they hired a human smuggler, who they paid $1,000. Along with “Cuba,” they were passed off to a series of smugglers through Honduras, travelling by bus and foot—climbing through mountainous coffee plantations and swimming across rivers—through Guatemala, and to the border with Mexico. On an evening in early October of 2014, they swam across the Suchiate River in the pouring rain, entered Mexico, and boarded a bus headed north. That same night they were detained at a checkpoint.
They spent 24 days in a detention center in the state of Chiapas, where they were separated from “Cuba”; they never saw her again. Finally, they were granted a 20-day visa to travel through Mexico on their way to the United States. On November 14, 2014, when they saw the US-Mexico border wall for the first time, they told me, they saw it as a sign of hope. Hammouda said that the United States has always been for him “a place of justice, freedom, mercy.” When they presented themselves to Customs and Border Protection officials, identified themselves as Palestinians and asked for asylum, they were shackled and taken into detention. The trip so far had cost them more than $20,000 dollars, they estimated, which they had borrowed from friends and friends of friends.
They spent one night in a holding cell in Nogales, and were then transferred to Florence, Arizona, where they were detained in the ICE Florence Service Process Center. Initially, both men passed their credible-fear interviews, the first step in the asylum process. Neither of them, however, had, or could afford, legal representation. Months began to tick by.
When he was first detained, Hammouda was diagnosed with “mixed anxiety and depression,” with symptoms including “feeling of choking, dizziness, and insomnia.” He told me that he only slept about three hours a night (both men slept in a bunk room with over 60 other men) because he couldn’t stop “thinking about everything.” They asked for books in Arabic, but all they received was an Arabic-English dictionary. They had no access to the Internet, which, during their voyage, was a lifeline.
Though Shaban was “medically cleared for custody” on November 25, 2014, only two months later he was also diagnosed with adjustment disorder and mixed anxiety. According to a medical report dating January 26, 2015, he claimed he was feeling “depressed because of his situation,” as well as feeling “worthless” and “having suicidal thoughts.” Seventy-five days into his detention he told medical staff that he felt “he has wasted his life.” Psychological studies have shown that asylum seekers detained for periods longer than six months show greater levels of “PTSD, depression and moderate to severe mental health–related disability.” When I talked to him in early March, he told me, “I am feeling more and more pessimistic.”
According to ICE, they have in the past deported Palestinians by working through the governments of Israel, Jordan, or Egypt, “with careful coordination” and the “utilization of [ICE’s] attaché network.” In the summer of 2015, Shaban and Hammouda’s deportation officer offered to send them to Pakistan, Afghanistan, Malaysia, or Iraq—countries where neither of them have ever been. The men took it as a threat, but they stressed to me that they would go anywhere, as long as they were no longer in detention. Shaban said, “I only care about being free.” The same deportation officer later told them that they might spend the rest of their lives behind bars.
Nearly a year after their initial detention, on August 20, 2015, still without legal representation, Shaban was denied asylum before a judge in Florence, Arizona, for failing “to meet his evidentiary burden”—not producing documents to support his asylum claim. According to a comprehensive study in the Stanford Law Review, “whether an asylum seeker is represented in court is the single most important factor affecting the outcome of her case.” Without any help or guidance, barely understanding the proceedings, Shaban represented himself pro se. The judge ordered him removed from the United States to Saudi Arabia, or as an alternative, to Israel, a country Shaban has never been to.
The same day he was denied asylum, he signed a waiver giving up his right to appeal the case. He told me that he didn’t understand what he was signing. In the habeas corpus petition Shaban’s lawyer alleges that his “continued detention is unconstitutional” because it “violates his right to substantive due process,” and deprives him of his freedom. Currently, he awaits a ruling from ICE on the habeas petition. “They can send me to the moon,” Shaban told his friend Jawad Chalan. “I don’t care where they send me. I don’t want to stay in prison.”
Throughout my initial interview with both Shaban and Hammouda, they both appeared visibly distressed, gesticulating rapidly, pointing, shaking their hands, shifting through stacks of paperwork, continually passing me documents through the slot in the plexiglass: “Decision to Continue Detention,” “Notice to Appear,” “Credible Fear Worksheet.” The Kafkaesque shades were as clear in the language of the documents as in Shaban and Hammouda’s status as “stateless”—as being, in Shaban’s case, inadmissible and yet undeportable. They both wore blue scrub pants, blue scrub shirts, blue jackets with blue buttons, and orange slip-on sneakers with their shoe sizes marked on the toe (both wear size 10). Shaban, despite his moments of serious, deep-seeded pessimism, also displayed an infectious smile, which he seemed to employ to get across a point that might be lost in translation. It was that same rupture in communication—failing to bring forth his evidence—that lost him his asylum case, and that confused him into signing the waiver to appeal.
Detention wasn’t easy for either man, though they at least had each other for moral support. Hammouda was released on a $9,000 bond on March 9 to await his asylum hearing, and now Shaban is almost completely isolated in the detention center. He has trouble contacting his family because of the nine-hour time difference, the exorbitant rates for calls ($1.25 per minute), and the frequent power outages in Gaza.
Statelessness is not a crime; in fact, it is a status that renders persons especially vulnerable to crime, as well as subject to arbitrary, lengthy, or indefinite detention. According to ICE, Shaban and Hammouda were “transferred to ICE custody pending a review of their cases by the immigration courts.” The review, in Shaban’s case, is over. He was denied asylum, and yet he remains in detention.
In the 2001 Supreme Court case Zadvydas vs. Davis, concerning Kestutis Zadvydas (born in Germany to Lithuanian parents, with neither country granting him citizenship) who was ordered deported in 1994, but would not be accepted by either country, Justice Stephen Breyer, writing for the majority opinion, claimed, “a statute permitting indefinite detention would raise serious constitutional questions. Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause.”
International law overwhelmingly agrees: The UNHCR, for example, “calls on States not to detain stateless persons on the sole basis of their being stateless” (emphasis added). In his 2001 majority opinion, Breyer concluded: “Once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.” ICE officers refer to this timeline as SLRRFF, an excretory-sounding acronym for “Significant Likelihood of Removal in Reasonably Foreseeable Future.” But how long into the future, one might wonder, is “reasonably foreseeable”? According to the 2010 report, Statelessness Persons Detained under US Authority, from Equal Rights Trust, “Because of the largely discretionary nature of the DHS’s determination as to the likelihood of removal, habeas petitions,” which Shaban’s lawyer filed in late February, “are often the only way for detainees to meaningfully challenge their detention.” Indeed, if his lawyers hadn’t filed a habeas petition, as Yousuf explained to me, “they would have kept him there forever.”
In oral arguments during the Zadvydas vs. Davis case, the late Justice Antonin Scalia commented, “It is up to you to find a country to get sent back to. The burden is not on us.” An essential aspect of basic human rights—like that of having a state—however, is that they should not need to be invoked, or pleaded and argued for for years in court, for them to be granted. The burden should be on the powers that remove those basic rights—like the right of freedom—to prove why they must be removed.
Shaban, who has been ordered deported, has already met Scalia’s ultimatum, he’s already found a country—the country that he calls home, but was forced to flee from: Palestine. The burden is on the US government to recognize it, or recognize his fear and grant him asylum. At this point, all Shaban wants is to be free.