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ACLU-NH wins immigrant rights lawsuit, takes on Northwood police

  • brown gavel and open book on a wooden table of the law in the courtroom

Monitor staff
Published: 11/16/2018 5:58:10 PM

The New Hampshire ACLU successfully proved that Immigration and Customs Enforcement unlawfully detained a Somali refugee for nine months and is now accusing Northwood police of making an illegal immigration stop based on racial profiling.

The federal lawsuit, filed Wednesday against the Northwood Police Department, is the third of its kind for the New Hampshire ACLU’s Immigrants’ Rights Project. The ACLU brought the case nearly two months after police arrested and held Johoani Velasco Perea, a Deferred Action for Childhood Arrivals recipient whom they believed was undocumented. The lawsuit mirrors a case pending against the Exeter Police Department, which the ACLU claims illegally arrested a Jordanian immigrant in August.

This week, as ACLU attorneys filed new claims against Northwood police, they learned an immigration judge had released the Somali refugee, jailed since March, on bond. The case on behalf of Abdigani Faisal Hussein was among the first brought by ACLU’s immigration project. Without court action, the ACLU argued, Hussein would have remained incarcerated for months or years while his deportation proceedings continued.

 Somali refugee

Hussein, 45, was released Thursday from immigration custody at the Strafford County jail in Dover. A judge ruled following a bond hearing that Hussein, who lawfully entered the United States in 1996, was neither a danger to the community or a flight risk, and ordered him released so he could be reunited with his family, the ACLU said in a statement Friday.

“Every person in this country has the right to due process,” said Devon Chaffee, executive director of New Hampshire’s ACLU. “Cases like this are exactly why we formed the ACLU-NH Immigrants’ Rights Project, and we are happy to see Mr. Hussein reunited with loved ones.”

Hussein, who had been living in Portland, Maine, since 2007, was detained by ICE in March and sent to the Dover correctional facility, one of six places in New England for ICE detainees. He had remained there until Thursday due to a 2002 conviction for possession of “khat,” a leafy plant local to East Africa that acts as a stimulant, according to court filings submitted by the ACLU.

Under a 1996 federal statute, those arrested for alleged immigration violations can be held indefinitely if they have prior convictions. But the ACLU argued the wording of that statute only applies to convictions that occurred just before the person was detained – not years after the fact.

An immigration judge had initially denied on Sept. 26 Hussein’s request for a bond hearing to address the reasons for his detention. In response, the ACLU pressed the court, saying the government must show “with clear and convincing evidence that Mr. Hussein is a danger to others or a flight risk.”

Hussein ultimately got his hearing Wednesday and the next day he was freed.

DACA recipient

Perea, who is documented and has a valid North Carolina driver’s license, is now seeking monetary damages after he was held for more than two hours on the evening of Sept. 21 by Northwood police.

Two officers stopped Perea and two other men, whom they described in their report as “Hispanic” and “suspicious,” the ACLU said in its latest filing. The men were walking from a gas station convenience store, where they had bought food, to their jobs at Harding Metals Inc.

During that initial roadside interaction, Perea showed the two officers a photograph of the carport under construction that they were completing for Harding Metals, as well as a video, the suit says.

The police report describes the men as “Hispanic” and “suspicious,” prompting the ACLU to argue that police detained Perea because they suspected he was in the United States illegally and yet they had no basis for their suspicion other than his race.

“The Northwood Police Department violated the law. The law is clear that local police officers may not detain or arrest an individual solely based on a suspected civil violation of federal immigration law.  The law is also clear that immigration arrests, at a minimum, require probable cause to believe that the person is undocumented,” said Henry Klementowicz, an ACLU staff attorney and co-counsel on the case.  “Here, there was no reason to believe that Mr. Velasco Perea was in the United States unlawfully, especially given his explanation that he was documented and his valid North Carolina driver’s license.”

The police department has declined to discuss the pending litigation.

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