DOVER — With the help of the American Civil Liberties Union of
New Hampshire, a Somali national living in Maine is challenging his
near seven-month immigration detention.
Abdigani Faisal Hussein,
who is being held at the Strafford County House of Corrections, filed a
lawsuit last week in U.S. District Court of New Hampshire against the
Strafford County HOC Superintendent Christopher Brackett and the Boston
Field Office Director for the U.S. Immigration and Customs Enforcement
(ICE) Todd Lyons. Hussein argues his “mandatory detention violates the
plain language” of immigration law and the due process afforded to him
under the Fifth Amendment. The lawsuit requests an expedited hearing.
According
to the suit, Hussein fled Somalia in 1991 during the country’s civil
war. In 1996, he immigrated lawfully as a refugee; in 1997, his became a
permanent resident. In 2002, Hussein was convicted in U.S. District
Court of Maine for possession with intent deliver khat, a flowering
plant native of eastern Africa that can be chewed or brewed as a tea and
used as a stimulant. The Drug Enforcement Agency classifies it as a
controlled drug. Hussein was convicted in a two-day trial, and the judge
sentenced him to one-year probation.
Two years later, Hussein was
served with a notice to appear for potential removal proceedings based
on his khat conviction, the lawsuit states. In 2006, he was detained by
ICE after he pleaded guilty to a misdemeanor charge of resisting arrest
in Pennsylvania. An immigration judge denied his requests for asylum,
and Hussein was given an order of removal. While his appeal was pending,
Hussein was released by Homeland Security in 2007 under an “order of
supervision,” according to the suit. The order allowed Hussein to remain
in the country and seek employment as long as he complied with
requirements, such as periodic check-ins.
Hussein, who married in
2004, has three teenage children and the four have lived at a Portland,
Maine address since 2007, and Hussein owns and operates a trucking
business, the suit states.
Hussein was detained in March “following a change in national
immigration enforcement policy,” according to the lawsuit. Hussein filed
a motion to reopen his removal order based on changed country
circumstances, which was granted in 2018 and vacated Hussein’s prior
order of removal, according to the suit. But Hussein has remained in
custody. On Sept. 26, he filed a motion to be released on bond, but the
immigration judge denied the motion because he said he did not have the
jurisdiction to do so, according to the suit.
Hussein, citing
immigration law, argues in the lawsuit that if U.S. immigration
officials wanted to remove him for the khat conviction, they should have
done so immediately when released from criminal custody for the
offense, not years later. “Because Mr. Hussein was released from custody
for a removable offense in 2002 prior to conviction, he is not subject
to mandatory detention under (immigration law),” the suit states,
arguing that continued detention without a bond hearing is unlawful.
Hussein
and his legal team also argued that Hussein’s right to due process is
being violated. “To date, he has still not received an individualized
determination regarding whether he is a danger to the community or
likely to flee,” the suit states. Hussein argues that his detention
could linger for months or years as his case proceeds through the
immigration court. According to the ACLU-NH, a hearing date has yet to
be set.