U.S. return of unlawfully deported AZ man stopped by appeals panel at last minute

Hinderaker had ordered the U.S. officials to appear physically in his courtroom to prove Soliman's court-ordered return was finally happening — nearly one month after Hinderaker's Oct. 6 return order, and days after the judge hinted at contempt proceedings for slow-moving government defendants in Soliman's civil complaint.

At the hearing, Arizona U.S. Attorney Timothy Courchaine, counsel for the U.S. government, assured the judge that Soliman would be aboard a commercial flight out of Equatorial Guinea early Wednesday. After a seven-hour layover in Casablanca, Morocco, Soliman would be met by immigration officials at Washington Dulles Airport.

The government of Equatorial Guinea and U.S. officials based there were in agreement. Even the U.S. consul general in Casablanca, Christopher Deutsch, had been apprised of the plan. Courchaine said he would answer any late-night calls from Soliman's lawyers, in case the unlawfully deported man experienced any travel issues.

But moments before Hinderaker adjourned the hearing, it all fell apart, as Courchaine was handed a piece of paper: The U.S. Court of Appeals for the Ninth Circuit had just granted the government's earlier request for an administrative stay of Hinderaker's Oct. 6 return order.

Instead of being days away from returning to the U.S. — where Soliman still faced the possibility of being re-detained and eventually removed to a different third country — Soliman now must await the result of oral arguments on the merits of the government's stay motion and its appeal of Hinderaker's order.

Oral arguments are set for January 2027, the Ninth Circuit Court of Appeals' order said.

Outside Hinderaker's courtroom Monday afternoon, Soliman's legal team was devastated.

"This is exactly what the government wanted, and they stalled for weeks in order to create this outcome," said one of his attorneys, Dana Camilleri of Tucson law firm Green Evans-Schroeder, after the hearing. Camilleri had a Tuesday flight booked to Morocco, where she'd planned to meet Soliman and accompany him on the final leg of his journey to Washington, D.C.

Camilleri said they'll find a way to get word to Soliman, who grew up in Phoenix after his family fled Egypt when he was 4, about the last-minute cancellation.

"I feel sick even contemplating that," Camilleri said. "Thirty-six hours before he was going to be rescued, we have to tell him that he has to wait until at least January. We're deeply devastated, and disappointed."

By the January hearing, Soliman will have been imprisoned without cause at a decommissioned hotel in Equatorial Guinea, despite not being charged with any crime there, for nearly nine months. 

Soliman, who has no ties to Equatorial Guinea, has been held incommunicado for weeks, since armed men at the hotel confiscated his and others' phones to prevent communication with lawyers and journalists.

Soliman has been physically assaulted, threatened at gunpoint and arbitrarily imprisoned in both a squalid jail and in the decommissioned hotel for the entirety of his time in Equatorial Guinea, other than two brief hospitalizations as his physical health deteriorated.

His lawyers said Monday Soliman has received a diagnosis of malaria but never received adequate medical treatment. 

U.S. Department of Homeland Security officials have claimed they're not responsible for what happens to U.S. deportees after they're sent to third countries that have agreed to receive them, but lawyers say that's false.

Oct. 6 return order

In a civil complaint filed by Soliman's attorneys in September, Hinderaker ruled Soliman was unlawfully deported in April, in violation of U.S. statute and Soliman's due process rights under the U.S. Constitution.

In an Oct. 6 filing, Hinderaker ordered the defendants in the case — including officials with DHS and the U.S. State Department — to facilitate Soliman's return to the U.S. and to "ensure his case is handled as it would have been had he not been improperly sent to Equatorial Guinea."

DHS and the State Department appealed the Oct. 6 return order to the Ninth Circuit Court of Appeals in mid-October. 

In granting the administrative stay Monday, the Ninth Circuit Court of Appeals judges vacated an earlier Oct. 23 order that had rejected the government's emergency stay request in the appeals case, Camilleri said.

"I find it baffling that the court would vacate itself without explanation," Camilleri said, outside the Tucson courtroom Monday.

During Monday's hearing, after U.S. Attorney Courchaine read aloud the appeals panel's brief stay order and provided the judge with a copy, Hinderaker asked Courchaine what the government's intention was.

"I’m not quite sure yet, your Honor," Courchaine said.

"My order has been stayed," Hinderaker told the court. "I’m not going to enter any orders in that case today, even though I started to do that. I would ask if the government decides to proceed with bringing the plaintiff (Soliman) back, let us know."

Courchaine said his first step will be to talk to DHS and the State Department officials "to see if they want to continue the travel (for Soliman), given the stay. We’ve already got everything arranged."

Soliman’s attorneys are not hopeful the U.S. government will voluntarily return him.

On April 28, ICE officials in Louisiana physically carried Soliman onto the deportation flight to Equatorial Guinea, without advance notice and without the opportunity to express fear of persecution or death in the country, where homosexuality is de facto criminalized. He is gay. 

At the time, Soliman still had a pending habeas corpus petition before Hinderaker, challenging the legality of his continued detention at Eloy Detention Center in Arizona.

When DHS suddenly began taking steps to deport Soliman, his attorneys rushed to file a request for a temporary restraining order, or TRO, against the agency to keep Soliman in the U.S.

Hinderaker denied the TRO request, but moved to expedite the case. Yet within 24 hours, DHS had forced Soliman on the plane to Africa, ignoring Soliman's pending case in Hinderaker's court.

Diplomatic assurances

The U.S. government has argued if a third country — those receiving U.S. deportees who have no ties to there — provides "diplomatic assurances" that deportees will be treated humanely, the U.S. doesn't have to abide by constitutionally mandated protections to ensure deportees' safety.

Human rights advocates, as well as four people detained at Hotel Bamy, have told the Arizona Daily Star that the supposed "diplomatic assurances" provided by Equatorial Guinea are by now demonstrably false.

The Star has reported for months on inhumane and dangerous conditions of detention for Soliman and other U.S. deportees imprisoned in Equatorial Guinea, none of whom have committed crimes there. 

The government of Equatorial Guinea has not explained why it's imprisoning U.S. deportees sent to the Central African nation.

Soliman and dozens of other U.S. deportees held at the decommissioned Hotel Bamy have also faced intense pressure from armed guards to agree to return to their home countries, despite U.S. immigration judges agreeing they'd face persecution, torture or death there.

Forcing someone to return to a country where they'll be persecuted or killed is known as refoulement, a violation of international law.

Order granting stay

The Ninth Circuit Court of Appeals' Nov. 2 order, granting an administrative stay, did not take a position on the merits of the government's request for a stay pending the outcome of the appeal case.

Ninth Circuit judges William A. Fletcher, Roopali H. Desai and Ana de Alba said they've expedited the appeal case. A panel will hear arguments over the merits of the stay, and the appeal, in January.

Last month, the Ninth Court of Appeals initially denied the U.S. government's request for an emergency stay of Hinderaker's Oct. 6 return order.

An administrative stay is supposed to be more limited than a stay pending the outcome of the full appeals case, but in this case, it's upended carefully laid plans, Camilleri said.

An administrative stay "is supposed to be a very limited relief to keep the status quo. But unfortunately, in situations like this, that's obviously not what the end result is," she said. "We were baffled because the government didn’t even argue all the necessary elements for a stay. But I guess they’re (the appeals panel) kicking that can down to the full briefing on the merits."

To be granted the stay pending appeal, U.S. officials will have to prove they'll suffer irreparable harm from returning Soliman to the U.S., Camilleri said.

"To suggest that they'll suffer irreparable harm, when they bought the tickets and made the itinerary and everything was ready to go, is a very hard argument to make," she said.