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ACLU sues ICE over detained Somali refugee in New Hampshire 

  • Strafford County Department of Corrections Superintendent Christopher Brackett is shown at the Strafford County Jail in Dover. Monitor file



Monitor staff
Wednesday, October 10, 2018

The New Hampshire ACLU is suing Immigration and Customs Enforcement (ICE) on behalf of a Somali refugee that the organization says is being unlawfully detained in the Strafford County jail.

Abdigani Faisal Hussein, 45, was detained by ICE in March and sent to the Dover correctional facility, according to court filings submitted by the ACLU Tuesday to the U.S. District Court of New Hampshire in Concord.

He has remained there since due to a conviction in 2002 for possession of “khat,” a leafy plant that acts as a stimulant, the ACLU says.

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

Without court action, the ACLU contends, Hussein could remain in jail for months or years while his deportation proceedings continue.

“Simply because of a 16-year-old conviction, ICE cannot detain Mr. Hussein indefinitely while his efforts to obtain protection under the Convention Against Torture and as a spouse of a U.S. citizen are pending,” said SangYeob Kim, an immigration legal fellow with the state ACLU office.

The ACLU says Hussein’s requests for a bond hearing to address the justification for his detention have been blocked. On Sept. 26, an attempt by Hussein to get a hearing was denied by an immigration judge, who referenced the federal law allowing indefinite detention, according to the lawsuit.

Citing an alleged violation of Hussein’s habeas corpus rights, the ACLU is pressing for a court order to ensure a bond hearing in which the government must show “with clear and convincing evidence that Mr. Hussein is a danger to others or a flight risk,” the filing reads.

“ICE says that, just because of this conviction, Mr. Hussein does not get a hearing on whether his detention is justified, even though a court has never ruled that he is a flight risk or a danger,” Kim said. “This is simply wrong; in America, people are entitled to have a court hearing to determine whether they belong in custody.”

The lawsuit lists both Strafford County Department of Corrections Superintendent Christopher Brackett and director of the ICE Boston field office Todd Lyons as defendants.

In an interview, Brackett said he was aware of the lawsuit, but said it was a federal matter. “The issue is really with the policy that the government has,” he said. “I’m named almost as a perfunctory defendant because I operate the facility in which he’s housed in.”

“We have to follow laws that are set forth by the state and the U.S. government, and that’s what we’re doing right now,” Brackett added. 

A spokeswoman for Immigrations and Customs Enforcement said the agency “does not comment on pending litigation.”

The move coincides with a similar case that landed at the U.S. Supreme Court this week. On Wednesday, the court he ard oral arguments in Nielsen v. Preap, in which plaintiffs are also arguing the federal statute should not allow for indefinite detentions for convictions handed out years ago.

The outcome of that case will likely have direct bearing on Hussein.

(Ethan DeWitt can be reached at edewitt@cmonitor.com, at  369-3307, or on Twitter at @edewittNH.)