Canada Arten boarded a flight back to Africa this month — after eight years awaiting his deportation and months of last-ditch efforts to avert it. But in a stunning reversal for the Twin Cities man and 91 other deportees on board, the plane turned back to the United States.
The flight’s return has landed Immigration and Customs Enforcement (ICE) in a legal, logistical and public relations morass. The case of Arten, who arrived as a refugee but lost his legal status after a robbery conviction, highlights the cascade of complications triggered by the failed mission. A federal lawsuit in Florida on behalf of him and other passengers, who allege physical abuse aboard the flight, has blocked their deportations until at least Jan. 8.
In federal court in Minneapolis, Arten’s attorney successfully argued the botched flight puts into question the government’s ability to send people back to Somalia; Arten could be released in a month.
The legal challenges could have long-term significance, tackling a question fought out in courtrooms across the country: How much of a role can the courts play in deportation challenges? The government disputes the passengers’ allegations and the idea that it can’t pull off deportations to Somalia.
“I don’t think this one failed mission, despite all the publicity, detracts from all the successful missions that have gone before, which of course do not get the same publicity,” said Ann Bildtsen, an assistant U.S. attorney, in a Minneapolis courtroom.
Mission gone wrong
Arten came to the United States in his early teens after losing family members in Somalia’s civil war. He was ordered deported in 2009, three years after his felony robbery conviction. But at the time, ICE could not send him to Somalia, which did not have a functioning government. Arten, who had prior convictions for assault and disorderly conduct, went on to rack up offenses for car theft, terroristic threats and drunken driving, among others.
A federal judge this week said that “the severity and frequency of Arten’s criminal activity has subsided in recent years,” and his mother, Lul Hussein, said he cared for her as she battled kidney disease.
In March, ICE detained him and set out to deport him. Deportations to Somalia resumed and picked up under President Barack Obama; under Donald Trump, their numbers have swelled, to 520 this past fiscal year.
In the following months, an immigration judge denied a request to reopen Arten’s case, and the Board of Immigration Appeals denied his appeal. A second attempt to reopen his case based on worsening security in Somalia also failed; an appeal is pending, but a request to stay his deportation was denied.
On Dec. 7, Arten got on a chartered flight to Senegal, the first leg of his return to Somalia. ICE says two-thirds of the passengers had criminal convictions, including for murder. Others had unsuccessfully sought asylum, including a Mayo Clinic cardiovascular technician and an Owatonna police officer who has a U.S. citizen wife and children.
In court documents, ICE says shortly before the plane landed in Senegal’s capital, Dakar, the relief crew notified the agency that a hotel power outage prevented them from getting required rest. The original crew went to a hotel to rest, and the plane sat on the runway for more than 20 hours, after Senegal refused to allow deportees to get off. Because of the delay, ICE said, the plane would have had to wait another 20 hours before continuing to Djibouti to meet a connecting flight to Somalia. Because of crew fatigue and the detainees’ “restlessness,” the agency made the call to fly back to Florida, where the passengers are now detained.
This week, U.S. Rep. Keith Ellison, D-Minn., wrote to ICE demanding answers about the Somalia mission.
A legal opportunity?
Earlier this week, the University of Minnesota’s Center for New Americans, the University of Miami School of Law and two other organizations filed a federal lawsuit in Miami, alleging ICE officers and contract guards kicked, struck, dragged, choked and bound detainees during the Dakar layover. The suit also says the passengers sat shackled for more than 40 hours and did not get enough food or bathroom breaks.
Attorneys argue the international headlines about the failed mission make returning the deportees even riskier. They say the publicity has alerted the terror group Al-Shabab, linked to the October bombing in Mogadishu that killed more than 500.
The government denied the deportees were mistreated and argued the Miami court does not have jurisdiction.
Meanwhile, lawyers have seized on the failed mission in a flurry of legal challenges. For example, local attorney Mirella Ceja-Orozco asked the local immigration court to revisit the case of client Rahim Mohamed, a truck driver facing deportation over a years-old conviction.
In Minneapolis federal court, Arten’s attorney asked for a temporary restraining order, arguing to send him back before his appeal is resolved would violate his due process rights. There’s more: Arten has been detained longer than six months, which means the government needs to show it can deport him soon or let him go. Rachel Petersen, his attorney, said she doesn’t buy the government’s explanation for the flight’s return, suggesting it has to do with Somalia’s past intransigence on deportations and unstable conditions.
“A plane went all the way to Africa, sat for a day and instead of continuing across Africa, returned to the U.S.,” she told Magistrate Judge David Schultz. She said Arten, who broke his wrist in a fall and still wears a cast, was extremely uncomfortable and was slapped by a guard.
Bildtsen, the government attorney, noted that Arten has gone to immigration court and the board of appeals twice, taking “a second bite at the apple.” “At what point do we reach a point of finality so the law can be executed?” she said.
To complicate matters for the government, a travel document the Somali Embassy issued for Arten expires this month. Bildtsen argued the Minneapolis court doesn’t have jurisdiction — and doesn’t need to issue a separate order given the stay in Miami as securing new documents and planning another mission will take time, she said.
But Schultz noted that means Arten might have to be released in the wake of the failed flight, which he dubbed “a bit of a mystery.” He found that Arten should stay until his appeal is decided and gave the government 30 days to release him or show it can deport him soon — findings the government can challenge.
Jurisdiction is a key question, said Rebecca Sharpless at the University of Miami. In 2005, Congress gave sole authority for deportation challenges to the immigration appeals board. But in recent years, federal courts have carved out exceptions. In fact, the court in Minneapolis kept two men from boarding the Dec. 7 flight to Somalia.
Michele McKenzie at Minneapolis-based nonprofit Advocates for Human Rights, which helped with the Miami suit, says attorneys and advocates will highlight the December mission’s failure to question the wisdom of attempting more and call for more transparency about the flights.
Said McKenzie, “We know we can’t pretend this didn’t happen.”