Mr. Mbai, the decision taken by the U.S Department of Homeland Security regarding deporting 2000 Gambians might be seen to be a justifiable one as far as U.S government policy is concerned. The decision taken by Gambian government not to accept the 2000 intended deportees is a step in the right direction. I do not see a law anywhere that says that any Gambian detained for an immigration violation should be forcefully removed to the Gambia and as such be accepted by the Gambian government when they cannot prove that they are Gambian citizens. With the Gambian passport out there on sale, I wonder how many of those detained are really Gambians.
Two thousand is not a small number and to try to deport that much requires so much work and resources for both Governments. Some airlines do not accept anyone to board an international flight without a valid passport. So I wonder how a Gambian deportee can be sent back home with no passport to board an airplane. Some airlines do not even accept the travel document issued by our embassy here in the United States to board an international flight. I believe the U.S Department of Homeland Security is really faced with an ethical dilemma because if the Gambian government fails to comply after this new pressure, they cannot continue to detain those Gambians indefinitely especially if the case is just for minor immigration violations.
It would be unconstitutionally to continue to detain an immigrant where the case has no criminal bases. This is clearly supported in Zadvydas v. Davis wherein the United States Court of Appeal held that “A statute permitting indefinite detention would raise serious constitutional questions. Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause. Government detention violates the Clause unless it is ordered in a criminal proceeding with adequate procedural safeguards or a special justification outweighs the individual’s liberty interest”. (Zadvydas v. Davis 533 U.S. 678 (2001).
We have to realize that not all immigration violations are criminal in nature. The Harvard Civil Rights- Civil Liberties Law Review states that “Violating immigration law is not a crime. It is a civil violation for which immigrants go through a process, overseen by the Department of Homeland Security” (Detained without Due Process: Is indefinite Immigration Detention Unconstitutional? n.d.). If the immigrant has not committed any serious crime of moral turpitude rather just overstaying a visa, what is the rationale for deportation? I would say give them employment authorization documents and let them work and pay taxes. Also, the law is very clear about the length of time an immigrant can spend in a detention facility. Issues like this have been a subject of litigation in the courts and a recent decision seems to give much hope to immigrants in detention. In the case of In Lora v. Shanahan, No. 14-2343 “the Second Circuit held that non-citizens cannot be subjected to prolonged periods of detention under a mandatory detention statute while their deportation cases are pending, and therefore must be given a bond hearing within six months of their detention” Id,. at para. 5. So therefore any continued attempts by the Department of Homeland Security to continue detaining those 2000 Gambians for maybe just minor immigration violations is definitely illegal. The Department of Homeland Security is really caught in an ethical dilemma.
Detained without Due Process: Is indefinite Immigration Detention Unconstitutional? (n.d.). Retrieved October 1, 2016, from http://harvardcrcl.org/detained-without-due-process-is-indefinite-immigration-detention-unconstitutional/
Zadvydas v. Davis 533 U.S. 678 (2001). (2000, October). Retrieved from https://supreme.justia.com/cases/federal/us/533/678/case.html
By Ebou Ngum, Everett, Washington