Originally Published in The New York Times.
By Benjamin Weiser December 27, 2018
Adou Kouadio, a citizen of Ivory Coast, arrived at the Texas border in early 2016 and asked for asylum, claiming that he had been threatened after supporting a political opponent of his country’s president.
But for the nearly three years that his request has remained under consideration, Mr. Kouadio, 43, has been detained by the American authorities, first in Texas and later in New Jersey. In August, he petitioned a court for help.
On Thursday, a federal judge in Manhattan said the government had violated Mr. Kouadio’s rights.
“This nation prides itself on its humanity and openness with which it treats those who seek refuge at its gates,” the judge, Alvin K. Hellerstein of Federal District Court, wrote. “By contrast, the autocracies of the world have been marked by harsh regimes of exclusion and detention. Our notions of due process nourish the former spirit and brace us against the latter.”
Detaining Mr. Kouadio for 34 months without a bail hearing violated his due process rights as a nonresident immigrant arriving at the border, “limited as those rights are,” the judge said in a ruling some legal experts also considered a rebuke of the Trump administration’s strict immigration policies.
Mr. Kouadio, who was first detained under the Obama administration, is now entitled to a bond hearing within 14 days, the judge ruled, at which the government has to show he poses a danger to the public or is a flight risk in order to continue his detention.
The judge added that Mr. Kouadio’s detention without an opportunity for bail was too long. “His right to liberty is as valuable to him as it is to any U.S. citizen, and he has a constitutional right to a bail hearing that should no longer be denied to him.”
In February, the United States Supreme Court ruled that under the immigration laws, people held in immigration detention, even for years, were not entitled to periodic hearings on whether they may be released on bail. But the Supreme Court did not decide whether the Constitution required such hearings, and sent the case back to a lower court to consider that issue.
Judge Hellerstein, a 1998 Clinton appointee, noted that Mr. Kouadio’s case “squarely presents the constitutional question” which the Supreme Court had not answered: “whether an indefinitely lengthy detention of a nonresident alien seeking asylum without a bond hearing violates the Due Process Clause of the Fifth Amendment.”
Mr. Kouadio was detained on Feb. 21, 2016, at the El Paso border crossing, the judge noted, where he expressed his desire to seek asylum. Several weeks later, an asylum officer found that Mr. Kouadio had demonstrated a credible fear of persecution in Ivory Coast based on his political opinions, the judge said.
That March, the government initiated proceedings to deport Mr. Kouadio, but the process was subjected to repeated delays, Judge Hellerstein noted. (The case was moved to New York so Mr. Kouadio could have better access to an interpreter and to his family, the opinion says.)
The judge noted that Mr. Kouadio had never been arrested or convicted, there was little risk of flight and the case did not present national security concerns.
Mr. Kouadio’s lawyers, Craig Relles and Steven Haskos, have said that their client, who had once worked for his country’s former president, Laurent Gbagbo, had his life threatened by supporters of Mr. Gbagbo’s successor, Alassane Ouattara, the current president.
Mr. Relles said on Thursday that Judge Hellerstein was “sending a message to the Trump administration that fundamental due process is alive and well.”
Legal experts agreed that the ruling was important.
Lucas Guttentag, who teaches law at Stanford and Yale and was a former top adviser in the Department of Homeland Security under President Obama, said the ruling recognized that “asylum applicants at our border are constitutionally entitled to due process and cannot be jailed for years without any hearing.”
Stephen Legomsky, a law professor at Washington University in St. Louis and the former chief counsel for Citizenship and Immigration Services in the Obama administration, added that the decision was an “implicit criticism” of the Trump administration’s policies, “in the sense that it is a clear rejection of the administration’s preference for long-term detention of asylum seekers.”
The United States attorney’s office in Manhattan had argued in court papers that Mr. Kouadio had been lawfully detained, and under Supreme Court precedent was not entitled to a bond hearing. “Under the circumstances of this case, Kouadio has received all of the process he is due,” the office wrote.
The office had no comment on the ruling. The United States Immigration and Customs Enforcement said it could not respond to a request for comment because of the government shutdown.
Doris Burke contributed research.
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