Global Courant 2023-04-14 00:11:18
Last summer, nearly a year after the Taliban took over his land, Mr A, an Afghan man in his 20s, crossed the southern border into California and told authorities he was seeking asylum.
On January 27 in a decision they would later reverse, The US authorities sent Mr A back to the country he had fled.
He hid in Afghanistan in fear, convinced that the Taliban would find him, while his lawyers tried to convince the government that his deportation was a mistake and that he should be returned.
On February 21, the US government paid to fly Mr. A back to Los Angeles. The extremely rare move, amounting to an admission that Mr. A’s deportation was at least premature, did not end his ordeal: he has been in ICE custody ever since. The US government is continuing his deportation, although the 9th Circuit Court of Appeals recently temporarily suspended his removal from the country.
Mr A’s deportation – and hasty return – indicates that ICE is sending people back to other countries, even dangerous ones like Afghanistan, without full information on their case, his lawyers say. The case of Mr A, who identifies The Times by the first initial of his first name because he fears that the Taliban will kill his family if they realize he has applied for asylum in the US, is a particularly charged example. He came to the US after fleeing a country that the US had occupied for 20 years, leaving it dangerous and in disarray.
“It was one of the most egregious things I’ve seen as an immigration attorney,” said Tania Linares Garcia, an attorney at the National Immigrant Justice Center who represents him. “Especially after the US government evacuated so many people. Why they would prioritize the… removal of anyone to Afghanistan is a mystery to us.”
As of last year, ICE has not kept records of the number of immigrants it accidentally deported while their cases were pending, according to an internal Department of Homeland Security investigation obtained by The Times. ICE therefore had no way of knowing whether erroneous takedowns were rare, the report, compiled by the agency’s civil rights watchdog, concluded.
Sunil Varghese, policy director at the International Refugee Assistance Project (IRAP), said that while he cannot comment on individual cases, American deportations to Afghanistan deserve special attention and utmost care.
“Afghanistan is a dangerous place for large groups of people, including those associated with the US government,” Varghese said. “The imprimaturism of arriving in Afghanistan via a US-facilitated flight can be dangerous.”
Mr. A initially left Afghanistan in 2022. He reached the US border in late June after traveling from South America, and crossed into California without authorization, where he was taken into custody and held by ICE for seven months. ICE detained him during his first asylum hearings, during which he was not represented by a lawyer.
In late November, an immigration judge ordered him deported. The NIJC helped him file an appeal shortly before the deadline, the group told The Times.
In immigration proceedings, deportations are generally suspended while appeals are considered and heard.
But on January 27, Mr. A was deported from the Southern California detention center where he was being held. ICE was not aware of his appeal until after his expulsion, an ICE spokesperson said.
“Why should I be deported to Afghanistan? That’s not legal,” he later told The Times through an interpreter.
ICE deportations to Afghanistan are extremely rare. In fiscal 2020, before US forces left the country, the agency had deported just 25 Afghans. That number fell to 14 the following year and 12 in fiscal year 2022, which ended in September. The agency has previously touted the criminal record of the Afghans it has deported.
“As a federal law enforcement agency, ICE would not knowingly remove a non-citizen citizen from the United States in violation of law or policy,” an ICE spokesperson said in a statement to The Times. “In the rare instances where ICE erroneously removes someone from the country, ICE tries to remedy the situation. In this case, ICE facilitated the return of the non-citizen as soon as the office heard of the appeal.
While waiting at an airport to go back to Afghanistan, Mr. A started destroying the documents he had for his asylum case, he said.
“I just couldn’t imagine if they saw me with these documents, what they would do to me – they would have killed me. For my own safety, I destroyed it,” he said.
The Taliban questioned Mr. A upon his arrival, he said. They asked where he had gone. He did not mention his trip to the US
He said he hid in Afghanistan for nearly three weeks while his lawyers tried to figure out how to get him back to the US.
“I was actually waiting for the Taliban to come after me. I couldn’t sleep,” he said of his time in Afghanistan.
The agency has been forced to bring back people it has deported in the past. In 2019, ICE accidentally removed an Iraqi man, Muneer Subaihani, after a federal court judge ordered the agency not to do so. The same federal court judge ordered ICE to buy Subaihani a plane ticket and allow him to enter the US. almost 300 days in prison.
In mid-February, the US government agreed to allow Mr. A to come back to the US. ICE worked with the State Department and its lawyers to bring him back, an agency spokesman said.
As he was on a plane heading home, he was convinced the Taliban would take him away.
“Okay, they’re coming,” he thought to himself.
But to his relief, Mr. A managed to escape Afghanistan and return to the country where he had previously sought safety. He landed at Los Angeles International Airport on February 21.
He expected to be given the chance to continue his asylum application as a free man. The group representing him even told the government that a sponsor was waiting for him in Chicago who will house him and pay for his life while he settles in the country.
The group begged ICE to give him a chance to avoid detention and live in Chicago before returning to the US. They explained that not only did he have no criminal record, but the Biden administration set up a process, Operation Allies Welcome, that helped facilitate the evacuation of Afghans to America.
“Such programs are designed to facilitate entry into the United States so that persons in similar positions to (Mr. A) can file their claims for protection,” they wrote to ICE.
ICE officials have not accepted the request. They took him to the Imperial Regional Detention Facility, where ICE holds immigrants.
“They put me in prison without any crime – I have not committed any crimes anywhere in the world,” he said.
His case, lawyers say, also highlights the problems within the immigration system when immigrants represent themselves in asylum hearings, as Mr A initially did.
Mr. A did not have an immigration lawyer when he was deported by the immigration court. The government says he waived his right to appeal during those hearings. His lawyers say he was unaware he had done this, as evidenced by the fact that they later helped him file an appeal. Migrants who do not have a lawyer are generally less likely to win in court.
The NIJC had helped Mr. A file his appeal in December, but the group says the Board of Immigration Appeals lost the document after it was delivered. A Justice Department spokesman said the government cannot comment on that claim unless Mr A. formally waives his privacy rights.
Mr A’s lawyers later re-filed his appeal after noting that the government website that reflects the status of the cases had not been updated. On Jan. 24, the NIJC attorneys said they had received notice that the appeal had been filed and the website said his case was pending.
However, the Immigration Appeals Board said in a March decision that Mr A had waived his right to appeal after being ordered to be deported in November. In a footnote, the appeals committee said that Mr A had not filed his appeal in a timely manner, but said it would not consider the matter further.
“It is bad enough that asylum seekers face cases of possible life or death, isolated in detention, with no right to appointed counsel and limited procedural protection,” said Linares Garcia. “It is unconscionable then to limit their ability to seek redress for faults in a system that is known to be overburdened, or to expect them to exercise their right of appeal while in hiding after being wrongly have been removed.”
Mr A’s lawyers have now gone to the 9th Circuit Court of Appeals, where they have argued that he was unaware that he had waived his right to appeal. The appeals court has stayed his deportation pending the case.
The 9th Circuit could rule in Mr. A’s favor and either refer the case back to the immigration courts or deny his attempt, leaving him again vulnerable to deportation. Mr A could also separately try to reopen his asylum case.
His lawyers pleaded with the government in the weeks following his return to the US. They hope he gets the chance to continue his case out of jail.
In a letter to DHS Secretary Alejandro Mayorkas, the lawyers say Mr A had told them he feels helpless and “doesn’t understand why he is being treated in such a callous way”.
