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Adam Klasfeld, Courthouse News, Dec. 27, 2018 - "An Ivorian asylum seeker who has spent nearly three years behind bars gained a chance at freedom Thursday after a federal judge blasted his continuing detention as an affront to democratic society.
“This nation prides itself on its humanity and openness with which it treats those who seek refuge at its gates,” U.S. District Judge Alvin Hellerstein wrote in an 11-page ruling.
“By contrast, the autocracies of the world have been marked by harsh regimes of exclusion and detention,” the judge continued. “Our notions of due process nourish the former spirit and brace us against the latter. The statutory framework governing those who seek refuge, and its provisions for detention, cannot be extended to deny all right to bail.”
Adou Kouadio, 43, fled his native Ivory Coast shortly after its second civil war but has spent all of his time on U.S. soil in immigrant detention.
In a phone interview, Kouadio’s attorney Craig Relles contrasted his client’s case against the image of the United States as a “shining beacon.”
“Here’s a person who fled for his life and has not spent a single day outside of a jail cell,” he said. “It’s hard to reconcile who we are as a society and a people with those facts.”
Kouadio’s ordeal began when Laurent Gbagbo, the strongman leader of the Ivory Coast, militarily clung to power in defiance of 2010 election results, becoming the first head of state to face International Criminal Court prosecution.
Having fled the west African nation as opposing factions clashed in the wake of Gbagbo’s arrest, Kouadio entered the United States in early 2016.
“If I go back, they will kill me,” Kouadio told immigration officials on March 14, 2016, when he crossed the border in El Paso, Texas.
Gbagbo’s trial at The Hague had kicked off earlier that year, and Kouadio claimed in his interview that he feared political persecution because he used to hand out T-shirts for Gbagbo. He said that backers of the Ivory Coast’s current president Alassane Ouattara killed his brother and slashed his hand and neck with a knife.
Kouadio told officials that his wife and three children remain in neighboring Ghana, but that he fears arrest and violence there because members of his family are pro-Ouattara.
Immigration officials did find that Kouadio demonstrated a “credible fear” of persecution but nevertheless started removal proceedings three days later.
Rejecting Kouadio’s petition last year, Immigration Judge Mimi Tsankov found that the Ivory Coast’s political situation had improved since his application.
The Department of Justice’s Board of Immigration Appeals later affirmed that ruling, but the Second Circuit stayed Koudio’s removal this past September. His appeal before that court remains pending.
For both Gbagbo and Kouadio, the wheels of justice ground slowly. Gbagbo just began to present his defense at his war crimes trial in September this year. Kouadio’s case in Texas stalled as he struggled to find a translator fluent in his native Twi language, and he petitioned for habeas relief in the Southern District of New York this past August.
The case’s extensive delays infuriated Judge Hellerstein, who blasted the government for its “shameful record” at a hearing in October.
“Apart from the merits, there’s very little excuse for keeping someone in detention for 220 days without a hearing,” Hellerstein said.
That indignation spilled over into his ruling today, as Hellerstein reminded the government of its international treaty obligations under the 1967 United Nations Protocol Relating to the Status of Refugees.
“Petitioner enjoys the right of appeal, and his right to asylum and admission into the United States remains open,” Hellerstein wrote. “His right to liberty is as valuable to him as it is to any U.S. citizen, and he has a constitutional right to a bail hearing that should no longer be denied to him.”
The judge noted that the government has not claimed that Kouadio poses a national-security threat.
“The world remains threatening to the United States’ interests, but we are far from the dark climate of World War II and the Korean and Vietnamese wars,” he wrote.
Citing precedent barring indefinite immigration detention, Hellerstein ordered the government to provide Kouadio with a bond hearing within 14 days.
Unless the government proves that Kouadio is dangerous or a flight risk, Hellerstein said, immigration officials must release him.
“Petitioner has a clean record, never having been arrested or convicted,” he wrote. “There is little risk of flight, since he seeks asylum within the United States, and little risk of danger to the community, judging from his lack of a prior criminal history. Yet, petitioner has suffered 34 months of detention without an opportunity for a bond hearing while waiting for a final decision on his petition for asylum.”
For Relles, the ruling today leaves no doubt about the rights of asylum seekers. “I think that it’s a rebuke of the current administration’s policies,” the lawyer said.
The U.S. Attorney’s Office for the Southern District of New York declined to comment.
Relles said that he and his co-counsel Steven Haskos have not yet told their client about their legal victory, but Kouadio is far from the only asylum seeker languishing in immigration lockup.
“It is an outlier among cases in general, but it is not unprecedented,” Relles said. “I have two other clients that have been detained for close to the same time.” "