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Court Challenge to US Deportation Policy Cites Anti-torture Treaty

FILE - An inmate is led out of his cell at San Quentin State Prison in San Quentin, California, Aug. 16, 2016. A group of 114 Iraqis held in detention in the U.S. and due to be deported argue that their forcible repatriation and threats they would face in their homeland would run counter an international treaty against torture.

A new lawsuit brought by 114 Iraqi nationals, who are in detention and scheduled for imminent deportation from the United States, invokes the international treaty against torture - and could have far-reaching consequences for thousands of other foreign nationals.

The Iraqis, who have all been accused of or convicted of various crimes, are not appealing their deportation orders per se, but are asking for the right to contest those orders in court on the grounds that returning to Iraq would place them in mortal danger.

Most of the Iraqis are Chaldean Christians and some are Shi'ite Muslims; both groups face persecution in their native Iraq.

Last week, U.S. District Court of Michigan Judge Mark Goldsmith granted a temporary stay not only to the Iraqi immigrants who brought the suit in Detroit but to 1,400 Iraqis nationwide, who face deportation.

Goldsmith ruled that he needed two weeks to decide whether he has jurisdiction over the case or whether it belongs in immigration court.

If Goldsmith determines he does not have jurisdiction, the immigrants will be put on a plane to Iraq.

But if he rules that he does, it would mean moving forward with a lawsuit that tests the government’s duty to protect people under the international Convention against Torture.

“The case is really fascinating,” Jayesh Rathod, an immigration law professor at American University's Washington College of Law, told VOA. “You would have a federal judge looking at this international obligation and using that obligation to control the actions that ICE (U.S. Immigration and Customs Enforcement) takes or doesn't take with respect to people who have deportation orders.”


Up until very recently, Iraq would not accept citizens who were deported by the U.S. That changed after the administration of President Donald Trump issued its first order restricting travel in January. The order banned travel from seven countries, including Iraq.

Rather than be included in the travel order, Iraq negotiated a repatriation agreement with the U.S. government and when the revised order was issued, Iraq was no longer on the list.

Since then, immigration agents have been rounding up Iraqi foreign nationals, who have committed crimes and consequently are under deportation orders.

An ICE spokesperson said in an email to VOA, that the Iraqis who have been detained are part of “an effort to process the backlog of these individuals, which is a decision which resulted from recent negotiations between the U.S. and Iraq that has agreed to accept a number of its nationals subject to orders of removal.”

ICE said the people arrested have final removal orders and the “overwhelming majority” have criminal convictions for serious crimes.

FILE - A shackled foreign national walks toward an aircraft for a repatriation flight, at Phoenix-Mesa Gateway Airport in Mesa, Arizona, June 26, 2012. A U.S. federal judge is to decide by July 10 whether 114 Iraqi nationals to be deported from the U.S. stand legal ground to have their forced repatriations blocked.
FILE - A shackled foreign national walks toward an aircraft for a repatriation flight, at Phoenix-Mesa Gateway Airport in Mesa, Arizona, June 26, 2012. A U.S. federal judge is to decide by July 10 whether 114 Iraqi nationals to be deported from the U.S. stand legal ground to have their forced repatriations blocked.

ICE is “cherry picking” these convictions to “scare the general public and to think these people are a threat to society because that's the only argument that they can hold on to,” said Nora Youkhana, who operates CODE Legal Aid Clinic in Detroit and is co-counsel in the suit.

“[The Iraqis] have been living in this country for 20 years, 30 years, after that with no problem. So they're really not a threat to society,” Youkhana told VOA.

She said they came to the United States legally after being granted asylum or refugee status “because of the country conditions in Iraq.”

“And now they're 40, 50 years old, married to westerners, you know. Their children are citizens. Their wives are citizens. Their husbands are citizens. They're not a threat to society at all.”

Youkhana said her clients are only asking to have their day in immigration court to appeal their removal orders.

ICE has been detaining the Iraqis without court trials.

Representing the government, Assistant U.S. Attorney Jennifer Newby said in court that petitioners, many of whom have had deportation orders for years, could have sought relief before an immigration court at any time and in not doing so, had abandoned their right to remain in the U.S.

“There are no limitations on the number that you can file and the timing so they certainly could have filed these petitions,” Newby said.

“They didn’t know that Iraq would take them back,” countered Lee Gelernt, a lawyer for the Iraqi detainees. “It’s only at that moment where they’re going to be removed that it really matters, and so we do not see why the government would not allow them to actually have their process.”

Torture treaty

Because of their beliefs, the Iraqis, who brought the suit, could face persecution, torture and even death if sent back Iraq. Their attorneys say that sending them back violates U.S. law in the form of the Convention against Torture.

The Convention is an international human rights treaty that prohibits torture and degrading treatment against all human beings. The United Nations General Assembly adopted it in 1984, and the U.S. ratified the treaty in October 1994.

Law professor Rathod said the Iraqis are making a “relatively novel” argument and one that hasn’t been batted around U.S. courts much. “This case is really about what are the obligations of the government,” he added.

“Right now the burden is on the immigrant, the person who is going to get deported, to say, 'Hold on a second. Don't deport me. I want to reopen my case. I want to assert my rights,’” Rathod said.

He added there is nothing that requires the government to hold off on deportations because people might have rights or they need to time to reopen their cases to assert those rights.

But if the case moves forward and is successful, the government could be forced to consider due process rights under the international treaty, ensuring no one is deported without a hearing.

Judge Goldsmith has said he will decide if he has jurisdiction in the case by July 10.