Originally Published in the Daily Beast
Opinion by Paul Moses and Tim Healy - November 30, 2020
Kingsley had to wait seven weeks in Immigration and Customs Enforcement (ICE) jails before he could see a judge, but that’s okay with him. Anything is better than what he fled in Cameroon, where he said authorities tortured him three times, jailed him for his political activism, and burned down his family’s house after he escaped custody.
His asylum officer determined that he had a “credible fear” of returning, but ICE, in keeping with Trump administration policy, kept him in custody at the Adams County Correctional Facility in Natchez, Mississippi. That continued for more than a month even after a judge granted him release on bond upon hearing his appeal by video in a New York immigration court. He was released Oct. 29.
Kingsley (not his full name), 29, doesn’t complain about his long wait. “Once I had that belief that one day I will be free, one day I will be able to see outside and live like a free person and live in a society where I won’t have to always look over my shoulder like I did in Cameroon, you know, that alone gave me joy,” he said in a telephone interview from Houston, where he is living with his brother. “So I really didn’t bother much about how long I spent in jail, because I lived in jail so many years back there in Cameroon.”
Still, the Mississippi jail had its own dark corners. Kingsley said he had trouble sleeping at night after ICE officers took away some fellow Cameroonians in chains. “It was later on that I heard that force was being applied on them,” he said, referring to allegations now under federal investigation: that officers on rotation from ICE’s New Orleans field office assaulted eight Cameroonian detainees, “beating up the men and forcing them to sign travel documents” for their deportation, as a civil-rights complaint asserts.
If there can be a silver lining to detention in Adams County, it’s that it houses an immigration court hearing room video-connected to the New York court, where the judges have been more inclined to grant asylum than in most other courts. And yet, there are sharp disparities for the two groups of immigrants—those held in Mississippi and those arrested in the New York area—whose journeys lead to the same fifth floor courtrooms of a Depression-era government office building at the corner of Houston and Varick streets in Manhattan.
The numbers tell a tale of two courts:
—The Mississippi detainees typically passed 31 days in custody before ICE filed their deportation charges with the court during the year that ended Sept. 30, according to a Daily Beast analysis of data kept by the Executive Office of Immigration Review, the Justice Department agency that runs the immigration courts. For cases on the New York docket, it typically took two days—one difference being that ICE’s New York office is under court order to tell a federal judge of each instance in which it takes longer than three days after an arrest to file charges.
—Detainees on the Adams County docket are much less likely to have lawyers, mainly because New York City funds counsel for most indigent immigration detainees. For example, during a four-week period starting July 13, court calendars show that detainees had lawyers for 85 percent of the 176 New York proceedings, but just 31 percent for the 184 hearings beamed in from the Mississippi jail. Indigent criminal defendants must be provided lawyers, but that doesn’t apply for deportation, a civil charge.
—During the Trump administration, both the New Orleans and New York ICE field offices have jailed nearly everyone they’ve arrested pending deportation without giving proper consideration to release, federal judges have found in separate cases. But EOIR data collected by the Transactional Records Access Clearinghouse at Syracuse University suggests that may be more egregious for Adams County detainees than nearly anywhere else in the country, as four out of five detainees there who appeal ICE’s decision to an immigration judge qualify to be granted bond. For New York detainees, it is one in three.
The disparities the Adams County detainees face highlight the larger problems with a vast network of immigration jails the Trump administration built in Louisiana and Mississippi starting in mid-2018. Adams is one of 17 new immigration lockups in the region. These facilities, all privately run, are under the charge of the ICE field office in New Orleans; the deputy director said in court papers that the office experienced “resource limitations” as the detainee population quadrupled in two years to an average of 10,409.
The detention centers, larger ones equipped with immigration court hearing locations, are far from immigration lawyers, tend to be understaffed to reduce costs, and offer very poor odds for getting released on parole, according to an American Civil Liberties Union report called “Justice-Free Zones.”
Stateless in Mississippi
“In Mississippi, ICE officers were really careless,” said Yazan Abualsoud, a 22-year-old Palestinian who spent 11 months in ICE custody before his Oct. 26 release. “They treated us very bad.”
Abualsoud, who is from Nablus on the West Bank, said he turned himself in at the official port of entry in Hidalgo, Texas last Dec. 1. He languished in the system because, as a Palestinian, he is considered stateless so that federal authorities lacked the means to deport him back. He said he had asked ICE officers repeatedly for parole—in immigration jargon, “parole” means being free pending the result of deportation charges—especially as the threat of the coronavirus grew. He tried to get medical records from a hospital to document his asthma, but an ICE agent responded in writing on June 30, “I can’t assist with your request. I work on immigration cases, not medical.”
He requested parole on a humanitarian basis, and ICE set up an interview. When he asked for a delay because he was waiting for documents needed to support his request, the written answer came back on July 5: “No! You were give [sic] a set date for your parole interview!”
ICE deportation officers loom large in the world of immigration detainees, especially those who don’t have a lawyer. At the Adams County jail, which is run by the private company CoreCivic, the ICE contingent rotates every 45 days. Abualsoud said he was misled and told he had no choice but to be patient and wait to be deported. Eventually, he met an officer who asked why he had never sought asylum. “He said, ‘I’m going to help you,’” and arranged an interview, Abualsoud said. “This guy, he’s a good officer.”
The process calls for U.S. Citizenship and Immigration Services, another branch of the Homeland Security department, to decide if an asylum seeker has a “credible fear” of persecution on the basis of race, religion, nationality, political opinion or membership in a particular social group. On Oct. 14, Abualsoud received a determination that he has a credible fear of persecution on the basis of religion. (His view of Islam subjected him to harassment from more doctrinaire Muslims, he says.)
Once an attorney assisted, ICE released him on parole on Oct. 26. “Immediately after walking outside, Yazan knelt down facing east and thanked God,” according to the Rev. Bill Barksdale, a Methodist minister in Natchez who has been helping immigrants freed from the jail. Then the jubilant young man called his mother on the West Bank. “She screamed tears of joy over the phone.” Now living with an uncle in Paterson, New Jersey, Abualsoud plans to seek asylum.
‘It’s a business’
ICE’s 2019 deal with Adams County and the private company that runs the facility, CoreCivic, Inc., was controversial. For the previous 10 years, CoreCivic had run the jail for the U.S. Bureau of Prisons, housing criminal defendants. In 2012, inmates rioted in response to what they perceived as “inadequate medical care, substandard food, and disrespectful staff members,” federal investigators later said. A correctional officer was killed and 20 other inmates and staffers were injured. A 2016 DHS inspector general report found that the facility was understaffed, a problem that persisted four years after the riot.
After the Bureau of Prisons announced in May 2019 that it would not renew the contract, Adams County officials, fearing a loss of jobs, scrambled to bring in ICE for a new agreement with CoreCivic.
In 2016, the ICE New Orleans office granted 75 percent of parole requests. In 2019, it denied 100 percent of requests in the first seven months of the year, a federal judge found.
“Sometimes the Office does not even respond to parole requests,” Judge James Boasberg wrote in a Sept. 2019 decision at U.S. District Court in Washington, D.C. “When it does, it issues boilerplate parole denials devoid of any individualized explanations.”
In the seven months after the judge ordered ICE’s New Orleans office to make fair parole considerations, it granted 13.5 percent—which, the judge found, raised “significant questions” about whether the government is obeying his order. On July 22, Boasberg gave the Southern Poverty Law Center the right to see internal ICE records to find out more. (The government maintains it is obeying the judicial order.)
Mich González, an attorney at SPLC, said the Adams detainees often have very strong cases for asylum. “They’re asylum seekers who presented [themselves] at port of entry,” they said, adding that many “have suffered persecution rising to the level of torture. They fly into South America, make their way by bus and foot. A lot of people die on the way.”
Matu Foboi, a 38-year-old Liberian-born woman who escaped to the United States at the age of 12 through a Christian missionary program, said her fellow detainees in Adams County were often confused because ICE had transferred them between facilities. “Some people don’t even know what court they’re going to be in, when you’re going to have a court date,” she said. “Whenever they move you, everything changes. Your judge changes. Now a new judge, a new ICE officer, new lawyer.”
DHS lawyers had abruptly moved her case from Chicago to the Adams County-New York docket, just after she had requested release under a federal court injunction ordering ICE to consider granting parole to detainees vulnerable to COVID-19, according to her attorney, Alex Krasutsky.
Foboi, who said she has emphysema and other physical ailments, had to file a new application with the ICE office in New Orleans. “I think I applied for bond three times and I was denied all three times,” she said. And yet Foboi’s underlying case had merit: she was freed Oct. 21 after an immigration judge granted her an order of withholding of removal, meaning that she is deemed a refugee protected against deportation.
“It’s a business. They move us from one jail to another so everybody can benefit,” she said.
‘A total breakdown’
The typical detainees at Adams crossed into the United States at the Mexican border, surrendered to the border patrol and waited in an ICE jail in Texas or Arizona for a couple of weeks. Under those circumstances, they face what’s called “expedited removal,” unless they can establish that they have a credible fear of persecution if returned home. If they succeed in getting such a determination from a USCIS asylum officer—or, failing that, on a one-time appeal to an immigration judge—the government gives them a Notice to Appear, or NTA, to begin removal proceedings. At that point, they can raise an asylum defense in an attempt to avoid deportation.
Throughout the detention network the New Orleans office of ICE runs, detainees face an exceptionally long wait in custody for their NTA to be filed, as The Daily Beast reported previously.
Bryan Cox, spokesman for ICE’s Southeast Region, said by email, “It should come as no surprise that some cases that involve a jurisdictional transfer may have resulted in a longer filing time due to the change of venue process with the courts.”
To be sure, some of the delay stems from a detainee’s wait for USCIS to offer a credible fear interview and make a decision. But attorneys who practice in the region’s immigration courts say that ICE contributes to the delays that keep their clients imprisoned.
“It’s definitely a breakdown on DHS. When they get the NTA filed with the court, generally the courts happen pretty quickly,” said Joseph Giardina, a Baton Rouge, Louisiana attorney. “All of it boils down to DHS.”
He said there was “a total breakdown of those things that need to be filed by DHS counsel or an ICE supervisor. There’s only so many of those guys.”
The New York offices of ICE and the EOIR faced a similar problem; immigration detainees waited for a median of 89 days for the first hearings held in August 2018. In criminal cases, authorities are required to arraign a defendant within two days.
As a preliminary step in a lawsuit over these long waits, the government agreed to provide a first hearing in all cases within 20 days of an arrest—three days for ICE to file the case and no more than 17 days from there to a first hearing.
For fiscal year 2020, which ended Sept. 30, New York detainees waited a median of 14 days in jail for a first hearing, according to EOIR data. But for the docket from Adams County—cases heard on the same fifth floor court on Varick Street but not included in the court order—it was 49 days.
EOIR has been moving the Adams County cases at close to the same pace as its New York-based cases—a median of 15 days and 13 days, respectively. The delay comes largely before the case is filed, not afterward.
At Adams County, detainees waited in custody for a median of 31 days for ICE to file their case in the immigration court during fiscal year 2020; it was two days in New York.
Part of that disparity may reflect that Adams County detainees are more likely to be waiting for a credible fear review from USCIS, which precedes the filing of an NTA.
But accounting for that, Adams County detainees still wait a median of 14 days from the time their NTA is served on them until it is filed with the court, according to EOIR data. Of the 111 major detainee hearing locations nationally, only two have longer waits: 18 days at Jackson Parish Correctional Center and 15 days at LaSalle Detention Facility, both located in Louisiana and run through ICE’s New Orleans office. Nationally, it’s a median of three days. In New York, it’s 1.5 days.
Amelia McGowan, director of immigration law at the Mississippi Center for Justice, said this is the snag she’s seen throughout the region: after a case passes the credible fear review, DHS has to file the NTA. “In my experience in other facilities, that’s where the hangup is,” she said, adding that sometimes there are delays at the courts in processing the file.
“We’ll send request after request to get an NTA filed,” said Britton Evers, a Louisiana immigration attorney, adding that he had a client waiting two months. “The hardest part for us is just getting a response from ICE.”
Darius Amiri, a Scottsdale, Arizona immigration lawyer, said it is difficult to contact ICE prosecutors in New York or anyone at the Adams County center. “If we were in Arizona, all this would take place in the same building: detention center, judge, EOIR,” he said. “It’s no way to practice law.”