This article was produced by the nonprofit journalism publication Capital & Main. It is co-published here with permission.

U.S. Immigration and Customs Enforcement is detaining many people who have already successfully proved in immigration court that they would likely be tortured if returned to their home countries and that they qualify for protection.

Winning these cases is extremely difficult, and even more so for people who are held in detention centers. Yet ICE often opts to keep people in custody even though they have convinced immigration judges through evidence and testimony that they qualify for protection while the agency appeals — sometimes repeatedly. And sometimes, when judges rule that they cannot be sent back to their home countries, ICE seeks to deport them to a third country, while keeping them locked up, said Austin Rose, an immigration attorney with Amica Center for Immigrant Rights who helped file a class-action lawsuit against these prolonged detentions.

It is exceedingly rare for another country to accept a deportee who has no ties there. According to the American Immigration Council, of the 1,274 people ICE tried to deport to a third country in fiscal 2017, only 21 were actually taken in by that country — just 1.6% of the cases.

Attorneys and advocates who work to support immigrants say ICE’s continued detention of people who have won their cases is disingenuous and prolongs the suffering of people who have overcome difficult legal standards to prove that they qualify for protection.

When asked about the issue, ICE spokesperson Jeff Carter said that the agency’s mission is to protect the United States, including through the use of immigration detention and deportation of people ordered removed by immigration judges. The agency declined to comment further on the record about the situation.

Among those still waiting is Mohamed Abdelwahab.

After more than a year in immigration custody at Otay Mesa Detention Center in San Diego, Abdelwahab thought he was finally going to walk free. An immigration judge had just ruled that he could not be deported to Egypt because he would likely be tortured there.

He called his wife and stepdaughter to deliver the good news. He felt such joy at the thought of seeing them again, he said he couldn’t sleep that night.

But that was last year, and he’s still locked up with no end in sight.

“I left my country so I wouldn’t be tortured, and the United States is still torturing me,” Abdelwahab said in the Spanish he learned in Ecuador while searching for a country safe enough to live in.

ICE, the agency responsible for long-term immigration detention, has guidelines that instruct officials to release people when they win their cases unless there are “exceptional concerns.” Abdelwahab is one of many examples of people held months or years after winning a form of protection in immigration court.

ICE confirmed that it believed Abdelwahab was wanted for various crimes in Egypt. Abdelwahab said that was proved false in his case for protection and that an Egyptian official had put a false alert on his name.

It’s unclear exactly how many people are currently being held in custody after winning their cases.

But attorneys who represent people in immigration custody across the country say they have seen an uptick in lengthy detentions after judges granted some form of protection to their clients.

Rose, the immigration attorney, helped file a class-action lawsuit with the ACLU of Virginia and the National Immigration Project against ICE on behalf of people being held in Virginia. The lawsuit was settled at the end of July, and some of those affected have been released.

Rose said about 100 people experienced lengthy detentions after winning protection in Virginia and Pennsylvania in the past two years.

He said he’s also aware of similar cases in California, New York, Georgia, Illinois, Texas and Massachusetts.

Indefinite appeals

People usually end up being indefinitely detained after winning their cases in one of two ways, Rose said. In one scenario, ICE appeals the immigration judge’s decision and holds the person in custody while the appeal goes forward.

That was the case for one plaintiff in the Virginia lawsuit, who remains in custody. He won his case in front of an immigration judge, and ICE appealed. The man won again, and ICE appealed a second time. The man won his case a third time, and ICE again appealed, Rose said. That third appeal is still pending.

The man, who is originally from Central America, has been in immigration custody for more than five years.

The average cost to U.S. taxpayers of holding someone in immigration custody is about $164.65 per day, according to the American Immigration Lawyers Association, though the exact cost can vary by detention center. That means ICE has likely spent more than $300,000 detaining the man.

In the second scenario, according to Rose, ICE keeps people in custody and tries to deport them to countries other than the ones they fled. But finding a country willing to take in a deported person not originally from that country is very rare, he said.

More than 80 organizations that work to support immigrants signed a letter in September to Alejandro Mayorkas, the secretary of Homeland Security, to push back on prolonged detention of people who have won their cases.

“ICE claims that it is seeking third country removal, knowing full well that the odds of finding such a third country are slim to none, as many noncitizens do not have lawful status, a history of residence, or ties to a third country, and are not even eligible to be considered for residency in a third country,” the letter said. “Not only is this practice inconsistent with ICE policy, but in many cases it violates Supreme Court precedent barring continued detention where removal is not ‘reasonably foreseeable.’”

ICE has kept people detained for months while it reaches out to other countries, Capital & Main found.

That’s what has happened to Manuel, a father from El Salvador who said he has spent more than five months in ICE custody since winning his case in early April. He and his family asked not to be fully identified because it’s unclear whether they will be sent somewhere they would likely be at risk.

After being accused of crimes he said he didn’t commit, he fled El Salvador in 2022 with his wife, two children, and a niece and nephew he has raised from childhood. The family was granted asylum in Mexico. According to both Manuel and his wife, Tania, they tried to restart their lives. But less than a year later, they found themselves targeted again, this time by a cartel. They tried moving across the country but again ran into problems with a cartel.

Feeling they had no other option, they requested asylum in the United States through the U.S. Customs and Border Protection’s CBP One appointment system, which allows people to make appointments to request protection at ports of entry. When Manuel entered at a San Diego port of entry, he was detained.

He believes ICE kept him in custody because of his record in El Salvador. Twice he had been detained by police there and accused of crimes he said he didn’t commit. He said he was eventually released from a Salvadoran jail after authorities realized they lacked evidence in his case. But he said he knew that police were likely to come after him again because of the power officers now have in El Salvador.

Under a ruling recently enacted under Salvadoran President Nayib Bukele known as the “state of exception,” El Salvador has suspended constitutional rights, and police are permitted to jail people indefinitely based on any suspicion of gang affiliation. Manuel’s concerns that he would be jailed if he were returned to El Salvador were part of the evidence introduced in his immigration case, which he won, he said.

Now ICE is trying to persuade Mexico to let the agency deport him there, according to attorney Ed Perez, who represents Manuel. But Mexico isn’t likely to take Manuel back, Perez said, because he no longer has status there now that he has been granted a version of protection in the U.S.

Meanwhile, his family, whose immigration case has yet to be decided, is living in Utah, and his children are struggling to cope with his absence, his wife said.

“We’re not bad people. We don’t want to take advantage of the country. On the contrary, we’re grateful for the opportunity to feel safe, and we need the fundamental part of our family who is my husband because as a woman, a wife, a mother, it’s not easy,” Tania said in Spanish. “There’s a little girl who is growing up without her dad.”

Manuel said his son told him about the parks where they can go skating together in their new city when — or if — he finally gets released.

“They’re my reason to keep enduring,” Manuel said, “having the hope to be able to be together and that we’ll be able to have a safe place to live.”

False charges

Perez said he has had several recent clients detained for long periods of time after winning their cases.

“I feel terrible because my clients look at me, like, ‘Hey, how is this happening? Why don’t you know why this is happening?’ And I’ve told them I’ve never had this happen before,” Perez said. “Normally if you win, they get released. That’s how this has always worked.”

Abdelwahab, the detainee from Egypt, is another of his clients. Like Manuel, he was held at Otay Mesa Detention Center until recently being transferred to Texas.

“I’ve never seen the United States,” he said. “I’ve only seen it in handcuffs and tied up like an animal.”

Abdelwahab said he went on a hunger strike to protest his continued detention and the lack of information he’s received about his situation.

When asked about the hunger strike, ICE said that the agency “respects a detained noncitizen’s right to exercise self-expression and medical autonomy by refusing nourishment and medical care” and that its medical staff would provide treatment to prevent “imminent life-threatening harm or death.”

Abdelwahab said that he fled Egypt after he and his family were targeted by a corrupt, high-ranking police officer. While he moved from country to country, trying to find a safe and secure place to start over, he met his wife online and went to Ecuador to be with her.

When the family faced problems in Ecuador, they decided to try migrating north. At a hotel in Colombia, that country’s immigration officials appeared at their hotel room door looking for him, Abdelwahab said. The officials told him that his name was flagged by Interpol, the international police organization. Abdelwahab said he quickly concluded that it must be the handiwork of the corrupt police officer in Egypt.

“There, the police control everything. It’s a false charge,” Abdelwahab said he told the immigration officials.

After checking with Egyptian authorities, the officials let him go, he said.

After his family crossed the treacherous route through the Darién Gap, a notorious jungle where migrants face poisonous snakes, powerful rivers and armed groups, U.S. officials in Panama took him into custody, he said. His wife and stepdaughter continued on to the United States while he was held roughly seven months in Panama by the U.S. Department of Homeland Security under a binational agreement, he said. He hasn’t seen his family since.

After he was released in Panama, he made his way to the U.S.-Mexico border, crossed into the United States and requested asylum. He was sent straight to immigration detention.

“My wife and child are still waiting for me,” he said. “I always tell them, ‘Soon, soon.’ I have been telling them for nearly three years.”

Copyright Capital & Main 2024