Letter Charges Immigration Authorities with Unlawful Detention; Reveals Feb. 8 Deadline for Report to Senate Committee about Hutto Family Prison
By Greg Moses
“We will be filing a petition for writ of habeas corpus in the Western District of Texas for Hanan, Hamzeh, Rodaina, Maryam, and Faten and a separate petition for writ of habeas corpus in the Northern District for Salaheddin,” says New York immigration attorney Joshua E. Bardavid today in reference to the Ibrahim family of Richardson, Texas who were abducted and jailed by USA immigration authorities in early November.
On January 24, 2007, Bardavid and his mentor Theodore N. Cox sent to the Department of Homeland Security a request for release of the Ibrahim family. Bardavid has supplied us with a pdf of the request; however, since the electronic file contains exhibits of family travel documents, Bardavid asks that it not be posted out of respect for the privacy of the Ibrahim family. Here is a summary:
In the request for release, Bardavid and Cox argue that the lawful period for detaining and deporting immigrants is within a six-month period following a final order of removal. Since that order of removal was officially filed on August 24, 2004, attorneys argue that the lawful period for detention and deportation has long expired.
Furthermore, say Bardavid and Cox, there is no likelihood that the Ibrahims can be sent back to Palestine. According to the Oslo II accords, Palestinian families may only return if they meet specific conditions (“individuals who left with valid travel documents that were pre-approved by he Palestinian authority, in possession of current. validly issued Palestinian identity documents”) that the Ibrahims do not fulfill.
Neither do the Ibrahims pose any risks to the USA or to their neighbors, says the attorneys. So there are no special circumstances to warrant the family’s detention:
“Their time in the Palestinian Territories and time in the United States demonstrate that they are nothing short of upstanding, productive, well-respected members of any community in which they live. Their continued detention is unlawful in that the purpose of the detention – civil (to effectuate removal) – no longer exists.”
In fact, argue Bardavid and Cox, the special circumstances that do exist in the Ibrahim case are ones that support the immediate release of the family:
“Hanan Alhai Ibrahim is currently pregnant. The stressful and unhealthy conditions in prison endanger the health and wellbeing of both Mrs. Ibrahim and her unborn child.”
Quoting remarks made by President George W. Bush when he signed the Unborn Victims of Violence Act of 2004, attorneys argue that not only is the detention of Mrs. Ibrahim unlawful, but that the detention of her unborn son “is a direct violation of the spirit of the law.”
“In signing this bill into law, President Bush explained that it ‘reinforced the circle of compassion’ and reaffirmed our Government’s and society’s commitment to a ‘a culture of life.’ ”
As for the children already born into the Ibrahim family, attorneys argue that their ages are a special circumstance that counts in favor of release:
“Aged five to fifteen, the emotional impact and devastating long-term psychological harm caused by prolonged detention cannot be underestimated. The same holds true to Mr. and Mrs. Ibrahim’s youngest child, age two, who has been separated from the family and placed into foster care as a direct result of this unlawful detention.”
Even if the Ibrahims were being detained within the allowable six month period, attorneys Bardavid and Cox argue that immigration authorities have not yet provided evidence that they conducted a proper custody review.
“Here, to the best of counsel’s knowledge, ICE has not conducted a single review of Respondents’ current detention. Because ICE has failed to do so, they are in violation of the laws and regulations governing detention, and continued detention is invalid.”
Additionally, argue Bardavid and Cox, the detention of the Ibrahims is a violation of the Fifth and Fourteenth Amendments of the USA Constitution, including a right to family unity.
“Distilled. the case law establishes that a fundamental right exists for parents and children lo maintain their bonds and ongoing relationship as a family unit free from government action that destroys that family unit.”
In fact, Congressional concern about the treatment of families has resulted in a demand by the Senate Appropriations Committee that ICE “submit a report by February 8, 2007, assessing the impact of the Hutto Family Center in Williamson, Texas, on the number of families required to be separated, and providing updated forecasts of family detention space needs for the next 2 years.”
Bardavid and Cox also reference a consent decree in the case of Flores v. Ashcroft under which the federal government adopted a policy in 2001 to “usually house . . . persons under the age of 18 in an open setting such as a foster or group home, and not in detention facilities.”
Because ICE has not taken any steps to prove why the Ibrahim children must be detained in prison, the agency is required to release them immediately, argue Bardavid and Cox in their letter to the Department of Homeland Security, dated Jan. 24, 2007.
Texas Civil Rights Review 