Federal Judge Orders Bond Hearing For Asylum Seeker Held In ICE Custody Nearly Three Years

A version of this article was published in The Brownsville Herald on April 23, 2020.

A federal judge in Brownsville, Texas ordered Immigration and Customs Enforcement (ICE) to facilitate a bond hearing for an asylum seeker the agency has detained at the Port Isabel Detention Center in Los Fresnos for nearly three years. The decision came only after four appeals challenging the man’s order of removal, a separate habeas petition filed by his attorney late last year, and an application for a temporary restraining order seeking the man’s release due to risks posed by COVID-19.

According to court records, M.B.D. fled Conkary, Guinea in 2015 after he was imprisoned and tortured for his participation in a peaceful demonstration in support of his favored political candidate. A petition for a writ of habeas corpus filed in November argued that Immigration and Customs Enforcement (ICE) violated M.B.D.’s right to due process under the Fifth Amendment by failing to grant him a bond hearing before a neutral arbiter to determine whether his detention was justified.

An order signed by U.S. District Judge Rolando Olvera on Tuesday granted M.B.D’s habeas petition, mandating that ICE provide him a hearing before an immigration judge within 14 days. Olvera abated a separate application for a temporary restraining order filed on M.B.D’s behalf in early April requesting his release from the Port Isabel Detention Center due to the risks posed by COVID-19 and concerns over an alleged lack of protective equipment inside the facility. 

M.B.D. has been detained in Los Fresnos without a bond hearing for 32 months.

According to the November complaint seeking his release, M.B.D. was imprisoned with 10 men inside a cell in Guinea and was given electrical shocks. The torture was so severe that one of the men died, the document stated. M.B.D was released after his captors forced to hand over his uncle’s phone number. The uncle then “negotiated” M.B.D.’s release from the cell.

M.B.D. fled immediately to Sierra Leone. One year later, upon receiving notice from his uncle that Guinean government officials were searching for him, he obtained a tourist visa from Brazil and fled to Sao Paolo. He remained in the city for two months in a state-run shelter unable to find work, the document stated.

M.B.D. fled North after he was attacked by a group of individuals and had his passport stolen. He arrived at the McAllen-Hidalgo-Reynosa International Bridge in August 2017 and requested asylum with a separate I.D. card. He spent one day detained before being transferred to the Port Isabel Detention Center. The man has remained in ICE custody ever since.

“He’s been locked up for three years now. We’re very glad he’s finally going to get an opportunity for a hearing to determine whether there was ever any need to detain him in the first place. We’re happy with the result and are looking forward to the next steps,” said M.B.D.’s attorney Peter McGraw.

McGraw said he’s still in conversation with the government to facilitate the hearing, which may be held over video.

Tuesday’s victory was the latest in a series of rulings that indicated M.B.D.’s asylum claim was not properly reviewed by an immigration judge and that his detention has been prolonged. “Part of the government’s position is that because he presented at the bridge and requested asylum without entering the United States first, he’s entitled to very limited due process rights. That does not include the right against arbitrary detention,” McGraw explained.

M.B.D. was not entitled to a custody hearing before an immigration judge as neither U.S. immigration courts or the Board of Immigration Appeals (BIA) have jurisdiction over custody re-determinations for “arriving aliens” as a result of current regulations. The petition filed in November argued that the only recourse available to M.B.D. would be through a grant of parole issued by ICE under the Morton Directive  – a policy issued in 2009 instructing the agency to grant parole to any asylum seeker who meets a set of guidelines, including the ability to establish his or her identity and not presenting a flight risk or danger to the community. 

Counsel alleged that the man was never interviewed for parole eligibility, in violation of this policy. According to the petition, M.B.D. was handed a document titled “Parole Advisal and Scheduling Notification” roughly two weeks following his transfer into ICE custody indicating the agency scheduled him for a parole interview later that day. That interview never took place, prompting him to request parole through his attorney in December 2017 with a birth certificate and letter from a sponsor to support his request. The petition indicated M.B.D. never received a response from ICE.

Immigration judge Robert L. Powell denied the man’s application for asylum during a November 2017 merits hearing in which he appeared without an attorney. The denial prompted a series of appeals to the Board of Immigration Appeals (BIA), which remanded the case back to an immigration judge three times.

A petition for judicial review filed in the United States Court of Appeals for the Fifth Circuit resulted in the case’s remand to the BIA in February. 

Tuesday’s order means that the government will have to articulate a reason why they’ve detained M.B.D. for almost three years. The mandated bond hearing will not necessarily determine the man’s release, though he does have sponsors in the United States, McGraw confirmed.

“Under the government’s articulation of due process, [M.B.D.] could be subject to potentially permanent detention other forms of abuse that could look something like torture. That is ultimately what the court is saying with this order – that he is entitled to due process rights against prolonged detention,” he said.