A federal judge in Buffalo kept Arzou Hami off a rare deportation flight to Iran. Whether she is on the next planeload of Iranians bound for Tehran will be up to a judge in Texas.
That is what worries her lawyer, Matthew K. Borowski, who suggested her move to a Texas detention facility in July was a tactic by Immigrations and Customs Enforcement to undermine her habeas corpus petition.
U.S. District Judge Lawrence Vilardo on Tuesday transferred her case to a federal court in the Southern District of Texas, ruling that jurisdiction in her case belongs where ICE oversees her detention. The Buffalo field office for ICE's Enforcement and Removal Operations moved her from the Niagara County jail to the El Valle Detention Facility in Raymondville, Texas.
"ICE, under the Trump administration, has chosen to detain individuals who were previously released from prolonged detention, moving them from jurisdiction to jurisdiction to prevent them from being able to secure counsel to file judicial challenges to their detention – and then apparently inventing facts retroactively to improve its position when a challenge is filed," Borowski said in a recent court filing.
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While prosecutors have argued that ICE is authorized to house detainees wherever it deems appropriate, Hami's transfer seems intended to deprive Hami of what ICE likely perceives as a "friendly venue" for her in Buffalo, Borowski said in the filing.
Borowski told The Buffalo News on Wednesday that he could not imagine fairer and more impartial judges than Vilardo and Chief U.S. District Judge Elizabeth Wolford in the Western District of New York.
"I'm hopeful that we get a good judge for Hami's case down in Texas," Borowski said. "I've heard there's some judges that are very tough on these issues, and then there are some judges that are a lot more fair. I think the law is ultimately on our side. But, of course, the judge's opinion of the case definitely plays a factor."
Flight to Iran
Vilardo's order prohibiting ICE from removing Hami from the United States remains in place until any further order comes from the new judge in Texas.
Vilardo's order prevented ICE from including Hami among the Iranian detainees put on a U.S.-chartered flight that took off from a military airport in Alexandra, La., on Sept. 29. The New York Times reported that after a stop in Puerto Rico to pick up more deportees, the plane headed to Qatar, where the deportees were to be put on another flight to Tehran.
The deportation was seen as a rare instance of cooperation between the U.S. and Iranian governments, coming three months after the United States bombed three Iranian nuclear facilities.
According to ICE's online detainee locator system, Hami remains in Raymondville.
Abolfazl Mehrabadi, director of Iran’s interest section in Washington, told the Times some 300 Iranians are in detention in the United States, and about 2,500 face threat of deportation.
Mehrabadi, who led the deportation flight coordination with American officials, said ICE initially informed Iran that 120 Iranian citizens would be on last week's flight, but later said 55 people were on the plane and that the rest would travel later, according to the Times.
“Iran’s government does not like to see any Iranian in detention or lost in a third country, and they face no problems returning,” Mehrabadi told the Times.
But deportations to Iran could put some detainees such as Hami in danger, immigrant advocates and attorneys say.
Hami fled Iran in the early 1990s and became a convert to Christianity, so she could face persecution as someone who renounced Islam.
"Ms. Hami is an Iranian woman who is not just an apostate under Iranian law due to her religious beliefs, and thus would be subject to the death penalty in Iran, but also a political dissident who fled Iran after being sentenced to corporal punishment," Borowski said in a court filing.
"Nobody can, with a straight face, tell you that someone that converted to Christianity from Islam would not be persecuted," Borowski told The News.
Complicating her situation, she also has mental health issues, and she has been prescribed medication for bipolar disorder and schizophrenia.
Escape from Iran
Hami has been in the United States for more than 30 years. Her family helped her escape Iran by bribing officials after she was sentenced to 80 lashes for a political offense, according to her court filing. She fled Iran through mountains on the backs of donkeys, according to her petition. She resettled in Canada, but after perceiving a threat by Iranians in that country, she crossed the frozen Lake Champlain to come to the United States in 1994.
She was ordered deported by an immigration judge in Buffalo, but unable to send her back to Iran at the time, immigration officials released her. She checked in with ICE periodically over the years, following the conditions of her release during her years living in New York State. In June, ICE arrested and detained her.
Her lawyer said she was deprived of the opportunity to present an asylum case with an immigration judge because she was homeless when she first entered this country and did not receive notice of her court hearing. Officials with the former U.S. Immigration and Naturalization Service who placed her in deportation proceedings put the address of a random shelter in New York on her paperwork, so the notice of the hearing never reached her. Her attempt to reopen those proceedings was denied.
Fight over jurisdiction
Borowski and Assistant U.S. Attorney Adam Khalil argued before Vilardo over jurisdiction, with the government pressing the judge to dismiss her petition altogether. Hami had already been removed to Texas by the time Borowski filed the petition on her behalf in Buffalo, Khalil told the judge. Borowski said ICE's online detainee locator system indicated she was in Western New York when he filed the petition.
Borowski argued that in his 12 years of practicing immigration law, detainees remained under the control of ICE officials in Buffalo, even if they were transferred to detention facilities in other locations.
But Vilardo ruled that Borowski did not provide any specific facts or evidence showing that local officials retained control over her immigration matters after her transfer to the El Valle Detention Facility, where she has been detained since July 3.
"Based the record before it, there is no basis for this Court to find that any custodian with control over Hami’s case is in this district," Vilardo wrote in his ruling. "Consequently, Hami has not properly named the respondents, and this District is not the correct one for her petition."
The judge, however, declined to dismiss her petition.
"Transfer instead of dismissal will allow this Court’s temporary order preventing Hami’s removal to remain in place until the new court can decide whether to extend or lift that order," Vilardo said.
Patrick Lakamp can be reached at plakamp@buffnews.com
