As more than 100 detained Iraqi nationals wait to see if they will be released after many have been held for nearly 18 months, recently unsealed documents raise new questions about Iraq's desire or ability to accept those detainees against their will.
The American Civil Liberties Union is representing Iraqi nationals who have final orders of deportation. More than 300 have been detained since May 2017, the group says, when Immigration and Customs Enforcement started targeting undocumented Iraqi immigrants with final deportation orders.
Continents and regions
Immigration, citizenship and displacement
International relations and national security
Middle East and North Africa
American Civil Liberties Union
Government organizations - US
Non-profit and NGO organizations
US Department of Homeland Security
US federal departments and agencies
US Immigration and Customs Enforcement
Many fear for their safety, the ACLU says, if they are returned to Iraq, a country that some have not lived in for decades. Some are Chaldean Christians or members of oppressed Muslim sects and fear being persecuted, tortured or killed if returned.
About 110 of those Iraqi nationals remain in ICE custody in 33 facilities nationwide.
Iraq's willingness to take in deported nationals has been the basis of the US government's argument to keep them detained until their immigration cases are decided. But recently unsealed documents, including memos and emails from US officials and a letter from an Iraqi official, show that Iraq has hesitated to allow the "forced return" of Iraqi nationals.
Iraqi officials re-emphasized to CNN on Friday their unwillingness to take in Iraqis who have been forcibly removed.
Ahmed Mahjoub, a spokesman for the Iraqi Foreign Ministry, told CNN the government encourages Iraqi nationals' return "...if they are willing to come to their homeland and are ready to facilitate it through our diplomatic missions, but, again, we won't cooperate with any government trying to forcibly return them."
ACLU attorney Miriam Aukerman hopes the documents will encourage US District Judge Mark Goldsmith in Detroit to consider allowing those who have remained in detention the chance to be released so that they can be with their families while their cases move forward.
"These individuals have lost all of 2018 based on misrepresentations to the court by ICE," Aukerman said. "The judge cannot give them back the months and months that they've been behind bars ... but the judge can let them go and let them return to their families. It prevents the injustice from continuing."
The Justice Department did not respond to questions about the case. Due to ongoing litigation, ICE had no comment, an agency spokesperson said.
About 1,400 Iraqi nationals living in the US as of Thursday have had final orders of removal and could be affected by the outcome of this case, ACLU said.
Back and forth with Iraq
ICE began detaining Iraqi nationals with deportation orders around May 15, 2017, according to court documents.
During the nearly 18 months that this case has been underway, the government has given repeated assurances that Iraq would be willing to accept these detainees.
In the past few months, Goldsmith ordered many of the documents with information about correspondence between the US and Iraq unsealed, showing the behind-the-scenes struggles US officials have faced in trying to deport the detained Iraqis and what they said publicly.
John Schultz, who serves as the deputy assistant director for the Removal Management Division East for ICE, said in a sworn declaration filed publicly as part of this case in July 2017 that "due to renewed discussions between the United States and Iraq in recent months, Iraq has agreed, using charter flights, to the timely return of its nationals that are subject to final orders of removal."
But just days before Schultz's testimony was entered into the case, Iraqi officials expressed concern that detainees "are at risk if they return to Iraq," the ACLU revealed in court documents filed last month.
One day before Schultz's testimony was entered, an internal ICE memo said that "ICE and the US Department of State have collaborated to engage Iraq ... these and other diplomatic efforts ... have failed to yield substantive progress regarding the removal of Iraqi nationals," according to the ACLU's filing.
Efforts to deport Iraqis were halted when Goldsmith granted a preliminary injunction on July 24, 2017, that prevents the government from deporting the Iraqis until they have had an opportunity to have their cases decided in immigration court.
The administration has argued for their speedy removal, in part, because "many" of them were "ordered removed on the basis of committing criminal offenses ... who have demonstrated their disregard for the country's laws and willingness to harm others," according to a court filing.
As the case has moved forward, recent correspondence from Iraq shows its attitude toward taking deportees has not changed, according to a letter from Iraq's minister of migration and displaced, written on July 29, 2018.
"We have received information indicating that some countries which host Iraqi nationals intend to forcibly return them ... ," writes Jassim Mohamed Mohamed Ali, the then-minister of migration and the displaced in Iraq.
"Since this issue contravenes the policy of the State and international law and norms, please ensure that all our embassies and consulates in the countries that host Iraqi nationals are ensuring they are not subject to deportation or forced return," he added.
After Goldsmith allowed the unsealing of some documents in this case, Auckerman said those documents show that the government's insistence that the conversations with Iraq are ongoing is incorrect.
"We have been down this road before, and we know from the documents we have seen that Iraq is very resistant to taking people who don't want to return," Auckerman said. "Part of the reason for that is Iraq understands these individuals face very real danger if they are returned. They're worried about their safety, and rightly so."