The indefinite detention of Mr. Abufayad

Sunday, February 27th, 2011
By: Jonathan MontagJ.D.

Last week I wrote about the case of Tareq Abufayad. The 9th Circuit Court of Appeals allowed him to be removed from the United States because an FBI expert concluded he would become a terrorist in the future. I tried to read between the lines as to the “rest of the story” and invited readers to let me know whether I got it wrong or right. Since the posting, I had communication with people “in the know” and reviewed media reports that were written after the Ninth Circuit’s decision. This information confirmed to me that my extrapolations and interpolations were correct. Today I would like to discuss the “end game” a little more.

I mentioned last week that Mr. Abufayad may simply be released because no country will take him. He is a Palestinian. Because Palestinians cannot control their immigration, it is Israel’s decision to allow him back into the occupied territories and Israel is obviously not allowing him back. He was born in Saudi Arabia, but Saudi Arabia does not recognize birthright citizenship.

How do I know Israel will not allow him back into Gaza or the West Bank? Because the public record indicates that on August 7, 2009, the Ninth Circuit, at Mr. Abufayad’s request, lifted the stay of removal in his case. According to INA § 241(a)(1), after an alien is ordered removed by the Board of Immigration Appeals (if there is an appeal, otherwise, by an immigration judge), the government has 90 days to remove him or her. This 90 day period is referred to as the “removal period.” When an alien files a petition for review (an appeal) with the Court of Appeals, he or she often files a stay of removal so that the government will not deport the person while the appeal is pending. If the court grants the stay, it stops the 90-day removal period in which the government is supposed to remove the alien. When the Ninth Circuit lifted the stay, the removal period clock began running again. It has been a year and six months since the stay was lifted and the government has not removed Abufayad. If Israel was going to accept him back into the occupied territories, it would have done it by now, one would think.

Is Mr. Abufayad’s detention for a year and three months, and counting, beyond the removal period legal? Is the government justified in detaining Mr. Abufayad when it cannot remove him? Mr. Abufayad does not think so, likely based on the Supreme Court’s decision in Clark v. Martinez. What does one do when one is subject to illegal detention? One files a petition for writ of habeas corpus. Public records indicate that Mr. Abufayad did this on January 11, 2010, when it became clear that the government was no honoring its obligation under the law to remove Mr. Abufayad in 90 days. The case is 10-cv-00070-DLB and it is pending in the Federal District Court in Fresno, California. And pending and pending and pending. The last action was last Thursday, February 24, 2011. On that day the District Court granted the government an extension to file an opposition to a motion for summary judgment which is now due on April 14, 2011.

In Clark v. Martinez, as in its predecessor case, Zadvydas v. Davis, the Supreme Court allowed for detention beyond 90 days if there is a reasonable possibility that the alien can be removed. The idea is if there are delays in obtaining travel documents from the accepting country or if there is some delay in finding a flight to return the alien, just because the 90-day mark is reached, the government does not have to release the alien. The Supreme Court gave the government 90 additional days based on this extension. Further, after Zadvydas, Congress passed a law, found at INA § 236(b)(6), that gives the government an extension of up to six months “if the release of the alien will threaten the national security of the United States or the safety of the community or any person.” Adding all the time allowed since the stay was listed, the 90 day removal period, the 90 day extension of Zadydas, and the six months extension of INA § 236(b)(6), the government is still six months late in obeying the law. Justice may be blind, but, at least in this case, it is certainly not fast. One recalls the addage, “Justice delayed is justice denied.” One can only hope that now that the government has been “vindicated” by the Ninth Circuit that it can deny admission to the United States to a permanent resident for the reasons it has done so in this case, the government will now obey the law and not permit the illegal indefinite detention of Mr. Abufayad. If the government does not want to obey the law on its own, hopefully the courts will compel it. Posted February 27, 2011.



One Response to “The indefinite detention of Mr. Abufayad”

  1. I thought that the whole reason for filing a habeas corpus was to force the government to explain to a judge why a person is being held so that if he is being held wrongfully, as appears to be the case here, the judge will order him released. At this juncture, even if the court finds that he has been held unlawfully and orders him released, the time he was held unlawfully can never be returned to him. The delay is shameful.

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