The curious case of a man detained by ICE who can’t stay, but can’t be sent back either

Sierra Leone doesn't recognize Mamadu Balde, but the U.S. government doesn't want him here either.

CREDIT: Pixabay
CREDIT: Pixabay

An immigrant from Sierra Leone — who could face indefinite imprisonment in Pennsylvania because his native government won’t take him back — is arguing for his release from immigration detention, according to a federal lawsuit filed by the American Civil Liberties Union (ACLU) against the U.S. Immigration and Customs Enforcement (ICE) agency Tuesday.

Lawyers for Mamadu Balde, who came to the United States in 1999 after fleeing civil war in Sierra Leone, argue that the U.S. government cannot realistically send him back to a country that won’t accept him and thus shouldn’t be detained. Balde has been “fully compliant with his orders of supervision, has committed no criminal infractions, has been married to a U.S. citizen for seven years, has maintained a strong employment record, and most important, there is still no reasonable prospect for Mr. Balde’s removal,” the ACLU argued in his petition for a writ of habeas corpus

Balde, a member of the minority Fulani tribe in Sierra Leone, fled his country after a rebel group came to his hometown and destroyed property and personal documents. After the Revolutionary United Front rebel group separated people based on ethnicity, Balde never saw his parents and sister again. 

Balde’s asylum application in the United States was denied and ICE tried to deport him in 2012 after he received a final order of removal the year before. Balde was detained for nine months while the U.S. government tried to deport him. But he was released when Sierra Leone was unable to verify his nationality and refused to issue travel documents to take him. Balde has since been living and working in West Virginia with his wife, a U.S. citizen.

But when Balde went to check in with the ICE agency in June, agents detained and sent him to York County Prison in Pennsylvania, where the federal agency has a contract to detain immigrant detainees. The lawsuit is filed by the ACLU of Pennsylvania and JBM Legal, LLC in Pittsburgh.

In its legal challenge, ACLU accused the government of a “legally unsupportable decision” to detain Balde on the basis that it violated his rights under a U.S. code relating to the detention and removal of immigrants ordered removed and the Fifth Amendment’s Due Process Clause.

“The U.S. government has detained a hardworking family man who cannot be deported in order to deport him.”

Sierra Leone is one of 47 countries that is “at risk of non-compliance,” meaning that they risk being considered uncooperative, or recalcitrant, in taking back foreign nationals who have been ordered removed, according to a list last updated in May 2017 and provided by the ICE agency via email on Wednesday. There are currently 12 recalcitrant countries that do not accept any foreign nationals, a diplomatic challenge that the Trump administration has threatened to curtail by denying visas to countries that do not cooperate with deportations.

“The U.S. government has detained a hardworking family man who cannot be deported in order to deport him,” Witold Walczak, legal director of the ACLU of Pennsylvania and one of Mr. Balde’s lawyers, said in a statement Tuesday. “If that doesn’t make sense, it shouldn’t because his detention is flatly unconstitutional.”

“Mr. Balde suffered real tragedy in his African homeland,” Ashley Lively, an immigration attorney with JBM Legal LLC who’s representing Balde said in the same statement. “This plainly unconstitutional detention is incredibly unfair to Mr. Balde, who has been a caring husband, devoted uncle, and productive employee for many years.”

Before he was detained Balde had been working as an Uber driver for two years. He helped to pay rent for his sister’s teenage children in New York City when she died.

Balde’s case is unique because Sierra Leone won’t take him back, but the U.S. government also can’t detain him forever. In 2001, the U.S. Supreme Court ruled in Zadvydas v. Davis that the U.S. government must limit the length of detention time for immigrants from so-called recalcitrant countries, or places where the governments refuse to accept its nationals back. The court also ruled indefinite detention was unconstitutional.

“The typical case is that after a removal order becomes final, ICE takes the person into custody, and holds them up to about six months while they try to get the native, or another, country to take the person,” Walczak explained in an emailed interview with ThinkProgress. “If after six months there are no takers, the person is release on parole or probation.”

“What’s different about this situation is that Balde has already spent six (and even more) months in jail while they try to deport him, and he’s been on probation and fully compliant with all terms for nearly five years,” Walczak added. “There is absolutely no legal basis to have re-detained him. How often these re-detentions of Zadvydas people who already served their six months is happening under Trump is unknown.”

The Trump administration has deported immigrants back to other recalcitrant countries. A Vietnamese refugee descendant of a Montagnard veteran who fought with the Green Berets during the Vietnam War was deported in July, in spite of Vietnam’s status as a recalcitrant country.


UPDATE: ICE sent ThinkProgress a response to this story on Thursday.

“Each country has an obligation under international law to accept the return of its nationals who are not eligible to remain in the United States or any other country,” an ICE official wrote in an emailed response to ThinkProgress Thursday. “The majority of countries in the world do. The United States itself routinely cooperates with foreign governments in documenting and accepting its citizens when asked.”

The official also pointed out that former Homeland Security Secretary Jeh Johnson determined conditions in Sierra Leone “no longer supported their designation for Temporary Protected Status (TPS), which would terminate six months later,” so unless TPS beneficiaries had other immigration statuses at the time the program ended in May 2017, they should prepare for and arrange their departure from the United States.