Prolonged Detention of Somali Torture Victim Unconstitutional

November 6, 2009 3:24 pm

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15 Months in Detention Causing Severe Psychological Deterioration, Government Must Prove Need to Continue Detention, Says ACLU


SAN DIEGO – The government’s prolonged detention without a hearing of a Somali man who was a victim of torture is unconstitutional, the San Diego ACLU said in a habeas corpus petition filed this week.

After facing a lifetime of persecution in his home country of Somalia, Abdala Warsame Abdille sought refuge in the United States. But like many traumatized asylum seekers, he was immediately detained in prison-like conditions, where he remains fifteen months later, without any hearing to determine whether his prolonged detention is necessary. The ACLU of San Diego & Imperial Counties filed a ground-breaking petition on November 3, 2009, challenging Abdille’s continued detention and calling on the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security to justify his continued detention in a fair hearing.

In the petition for writ of habeas corpus, the ACLU claims that it violates the Immigration and Nationality Act and due process to incarcerate Abdille without a hearing where the government must justify his detention. The organization also claims that the government’s denial of Abdille’s request for release without a legitimate rationale constitutes an abuse of discretion. The ACLU seeks either Abdille’s immediate release from custody under reasonable conditions of supervision or a constitutionally adequate hearing before an immigration judge.

Abdille’s prolonged incarceration illustrates the flaws of an immigration system that disregards the welfare of survivors of torture and indiscriminately brands the victims of terrorism as “terrorists.” As an immigration judge determined, Abdille belongs to a Somali minority clan subjected to violence and inhumane treatment. He fled Somalia after militiamen claiming to belong to the Al-Shabaab group kidnapped him. The militiamen beat Abdille and shot and killed his cousin. The militiamen then forced Abdille to serve as a human decoy by standing in a road holding a gun that he did not know how to use or even if it was loaded. Nothing happened, and Abdille was able to escape after about a day and a half. Yet the government opposed his application for asylum on the claim that he provided “material support” for a “terrorist organization.” The immigration judge found that Abdille had only acted under duress, but that he had nonetheless provided “material support” to Al-Shabaab and was therefore barred from obtaining asylum. The judge instead recommended that Abdille receive asylum under a discretionary waiver program administered by U.S. Citizenship and Immigration Services, a process which could take months or years.

Since first being detained upon arrival in the United States fifteen months ago, Abdille has been diagnosed as suffering from Post-Traumatic Stress Disorder and acute depression. A 2003 study by the NYU/Bellevue Program for Survivors of Torture found that the prolonged detention of asylum seekers who have been victims of violence, like Abdille, greatly exacerbates their mental suffering. Despite being aware of Abdille’s mental conditions and having the power under the immigration laws to release Abdille, the Department of Homeland Security denied a special request for temporary release made by Abdille’s immigration counsel.

“Prolonged detention without a hearing violates the core of due process protections guaranteed by our Constitution,” said Sean Riordan, staff attorney of the ACLU of San Diego & Imperial Counties. “It is shameful that we subject victims of torture and war crimes like Mr. Abdille to years of detention without so much as a hearing to determine whether that detention is necessary.”

Mr. Abdille is represented in his asylum proceedings by volunteer attorney Kara Persson of Gordon and Rees LLP.

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