How long is too long to detain immigrants?

Sylvester Owino’s parents raised him as a Christian in Kenya, but he readily admits to straying as a young adult. After emigrating to the United States on a student visa in 1998, Owino had a series of alcohol-related run-ins with the law, including domestic battery and two DUI convictions.

One night in 2003, a drunken Owino gambled away his money, prompting him to wander into a nearby shop at closing and demand cash. No one was injured in the $21 heist, and police apprehended him within minutes. They found no weapon, but Owino’s victim said he had a knife, and a judge later sentenced him to 36 months in prison for armed robbery.

Upon his release in 2005, Owino was immediately transferred to Immigration and Customs Enforcement (ICE) custody to begin deportation proceedings. A long legal battle ensued, but along the way one thing has remained constant: Owino has been behind bars for more than 11 years.

“I feel like I’ve been triple punished—punished excessively,” Owino, now 38, told me in a recent phone interview from the Etowah County Detention Center in Alabama.

ICE reports the average detention stay is about a month as it carries out roughly 400,000 deportations each year—most for unlawful presence in the country and others, like Owino, for criminal behavior. ICE succeeds in deporting four out of five detainees, and most of the remaining immigrants win the right to stay in the United States. But a few hundred are stuck in legal limbo. These detainees are not serving criminal sentences, but for various reasons the government hasn’t been able to deport them.

“We’ve all grown up in a context that we assume we have a right to a lawyer and due process,” said Michael Tan, an attorney with the American Civil Liberties Union’s Immigrants’ Rights Project. “That just isn’t the case in the immigration system.”

Legal limbo

In a 1982 Supreme Court decision, former Justice William Brennan wrote: “Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” But a series of court decisions have upheld the legality of detention and the so-called plenary power doctrine—a legal concept giving the legislative and executive branches almost unlimited authority to craft immigration laws.

In 2001, the Supreme Court ruled in Zadvydas v. Davis that the government cannot detain non-citizens for more than six months if deportation is unlikely in the foreseeable future—such as in cases of North Korean or Cuban nationals whose countries refuse to take them back. The decision, along with two others issued the same term, led immigrant advocates to predict the coming end of long-term detention and legal experts to predict the end of the plenary power doctrine.

It hasn’t worked out that way. Subsequent court rulings have interpreted Zadvydas narrowly, leaving the government, in some instances, to detain for years immigrants whose countries don’t openly refuse them. Most countries are unlikely to deny requests because the United States ties foreign aid to cooperation on immigration.

In Owino’s case, Kenya has refused to take him back as long as his appeal is still in process. Owino, a former Kenyan track athlete, says Kenyan police beat him after he spoke out against government abuses, so he’s fighting his removal to the country based on the United Nations Convention Against Torture. Kenyan police brutality is well-documented, including the recently publicized case of a convert from Islam to Christianity, but immigration courts have so far ruled Owino’s claim is not credible.

James Fife, Owino’s lawyer, says his client should have been released while his case worked its way through the legal system, noting his cooperation while in custody, letters of recommendation from a detention center warden and ICE officer, and ready sponsors upon his release. ICE in 2012 issued a temporary stay of removal pending Owino’s appeal, but immigration judges have repeatedly denied his bond request, ruling him a flight risk and a danger to the community.

“On what basis is such a stale conviction likelihood of danger?” said Fife, a public defender who has worked on Owino’s case since 2006. “No one would ever be released from prison if all you did is go back and look at what their conviction was. I’ve had people released on much more serious convictions—on no bond and no supervision.”

From ICE’s perspective, Owino is responsible for his lengthy detention, because he’s continued to fight his case in court and his criminal past makes him unfit for release. “Mr. Owino is a convicted felon,” ICE spokesman Bryan Cox told me via email. “Each review of Mr. Owino’s case has resulted in a determination that his significant criminal history makes him subject to mandatory detention under the law.”

That explanation doesn’t hold water, according to Abraham Paulos, director of Families for Freedom, an activist group advocating for Owino’s release. “The judge sentenced him to three years, not 12 years, which is insane,” he said, adding Owino would have been better off remaining in the criminal prison system. “We’re talking about a civil violation, not a criminal violation.”

Cox told me ICE policy requires the agency to keep Owino in custody and the agency has no plans to release him: “Mr. Owino will remain in ICE custody pending the completion of judicial review of his case.” The 9th U.S. Circuit Court of Appeals is expected to rule on the case at any time.

Unrealistic expectations?

In 1992, the United States ratified the International Covenant on Civil and Political Rights, which, among other things, bars arbitrary detention and guarantees a right to a prompt trial, but it is not enforceable in American courts. In 2008, the European Union created a clear detention maximum of six months, or 18 months for special circumstances. The 2001 Zadvydas decision notwithstanding, the United States has not followed suit.

Long-term detention illustrates the legal tension between two critically important concepts: state sovereignty and individual freedom. Most long-term detainees have committed crimes, but since their detention comes after serving criminal sentences, critics argue it’s an example of double jeopardy. The Boston Globe reported this year on a Czech national who has been detained for seven years without being convicted of any crime.

Many argue U.S. law is idealistic: It doesn’t take into consideration the 375,000-case backlog in immigration courts. In the Zadvydas case, the Supreme Court seems to assume that those non-citizens who have not been ordered removed will receive a timely hearing, but that’s often not the case, even for asylum seekers who have not broken any laws.

“If someone is dangerous, nothing would stop the judge from saying this person needs to be locked up—no one is talking about letting dangerous people out on the street,” said the ACLU’s Michael Tan, who noted asylum seekers are rarely dangerous. “We’re just saying they should get a bond hearing.”

Last year the 9th Circuit ruled the government cannot hold someone for more than six months without granting a bond hearing, but that decision does not apply to the rest of the country.

Owino’s first bond hearing came four years into his detention, although it and future hearings haven’t helped him. He says he’s willing to go to any country in the world except Kenya, but most countries require a person to be present before they will consider asylum claims. His application in Canada is still pending.

“Take me to Mexico, El Salvador, anywhere,” Owino said. “I’ll go. I don’t care right now. I’ll sign anything saying if you ever catch me here again you can throw me in prison.”

For now, Owino says he reads his Bible and Our Daily Bread every day, hoping for relief from the courts. “My crime from 2003 is a serious crime, yet I’ve seen people come back and forth who committed much worse crimes,” he said. “I don’t know why some of us are here.”