Unraveling and Decoding WaPo ICE 'Church Arrest' Story
Unraveling and Decoding WaPo ICE 'Church Arrest' Story
Alien under a final order of removal for 15 years — no wonder there are almost 600,000 absconders
By Andrew R. Arthur on September 19, 2020
If you subscribe to the Washington Post online, you receive an E-mail update of the afternoon news captioned "Afternoon Buzz". The first article on Thursday's was headlined: "ICE arrested an undocumented immigrant on church grounds. They lied to coax him out, family and attorney say". Let me unravel and decode that article for you.
It involves an Indonesian national named Binsar Siahaan. Apparently, ICE agents arrived at his residence (more about that later) at 7:00 AM last Thursday morning, and took him into custody. Why did ICE take him into custody?
If you read down 13 paragraphs, you will find that he is under a final order of removal, an order that was issued approximately 15 years ago. So, why was he removable?
If you read down three more paragraphs, you will discover that he overstayed his A-3 nonimmigrant visa (he had entered to work as a driver at the Indonesian Embassy) approximately a decade before that order was issued ("in the early 1990s").
He is a Christian (a fact that apparently did not prevent him from getting a job with the Indonesian government), and at some point after her arrival in the United States, his wife converted to Christianity from Islam. The couple filed an asylum claim based on religious persecution in 2003. It is unclear whether he made that claim before an immigration judge or USCIS, but in any event, it was time-barred, and he was ordered removed.
Of course, if it were USCIS, the case would have been referred to the immigration court. If he made the claim before an immigration judge (IJ), the IJ would have also considered him for statutory withholding of removal, for which there is no one-year bar to filing, prior to ordering him deported in 2005. None of this is discussed in the Post article, but we do know the lunch his wife packed for him to take when ICE arrived ("an apple and a water bottle").
His appeal of that decision was also dismissed by the Board of Immigration Appeals (BIA) in 2005. It appears that he subsequently filed a petition for review under section 242 of the Immigration and Nationality Act (INA), because the article refers to "multiple appeals", but again the paper does not clarify this. Nonetheless, hence the final order.
Despite this fact, he and his wife (who was also ordered removed as a visa overstay in 2005) opted not to comply with that order of removal. Or, as the Post puts it: "They decided to stay." Although they did so, rather than being deported, in 2012, Siahaan and his wife "entered into an 'order of supervision' agreement with ICE that required them to check in regularly at the local field office."
That is one way of putting it. An "agreement" makes it sound like both parties gave up something, and both got something. But there did not appear to be much in it for ICE, given the fact that Siahaan had been under an order of removal for approximately seven years at that point — raising the question of why ICE went to the apparent trouble of attempting to locate him at that point.
The Post then states: "They complied for eight years without incident." Well, if ICE is going to simply allow you to remain in the United States indefinitely, why wouldn't you "comply without incident"? This continued until February, when ICE decided to arrest the alien "during a routine check-in".
ICE was well within its authority in doing so — he was under a final order of removal, after all. One would assume that this would be the end of the story, and the arrest a week ago would not have been necessary. You would be wrong, because then, almost 15 years after he (and his wife) were ordered removed from the United States, ICE released him on ankle monitoring.
The reasons why are not entirely clear. The Post asserts that he was placed on monitoring "while legal appeals were pending", but there are no legal appeals referenced in that case that would have been pending in February, and immigration appeals generally don't take 15 years. The article does cite an ICE statement, which explains: "Siahaan filed an emergency stay of removal after his most recent arrest, which is currently pending" (emphasis added), but that would have been last week.
It is unclear where that stay was filed — in federal circuit court or before the Board of Immigration Appeals (BIA) — but it appears to have been before the BIA, because the paper quotes his current attorney as stating that "she hopes to reopen his original removal proceedings, arguing that Siahaan and [Eko] Sukemi [his wife] had ineffective counsel the first time."
That is a fairly common motion for people facing removal. It is filed with the IJ or the BIA (whichever one had the case last). Such motions are so common, they have a name: Lozada, after the 1988 BIA decision in Matter of Lozada, which provides the (rather stringent) standards for granting such a motion to reopen because your lawyer botched your case. But it suggests that at the time that he was placed on ankle monitoring in February, he did not have any appeals pending at all.
A circuit court petition for review of his 2005 removal order would have had to have been filed 30 days after that order was issued (and they usually do not take 15 years to adjudicate) under section 242(b)(1) of the INA, and a motion to reopen would not be necessary had his appeal somehow been pending with the BIA in February. Had he otherwise filed with the circuit court, that court would have to remand the case back to the BIA for it to have jurisdiction.
Of course, the Post does not start with these legal details. It starts with the arrest, which as the headline suggests occurred "on church grounds". Under ICE policy, "enforcement actions are not to occur at or be focused on sensitive locations such as schools [or] places of worship" unless three conditions are met: (1) there are exigent circumstances; (2) other law enforcement actions have led officers to a sensitive location; or (3) prior approval is obtained from a designated supervisory official.
ICE apparently still follows Obama-era guidance on such actions, which was issued in October 2011. "Exigent circumstances" is defined fairly narrowly thereunder, to cases involving national security or terrorism; a risk of death, violence, or physical harm to persons or property; the immediate arrest of a dangerous felon, terrorism suspect, or other person posing an imminent danger to the public safety; or where evidence in an ongoing criminal case would be destroyed.
Of course, it is unclear these restrictions would apply at all. You see, Siahaan was not arrested at the church per se, but rather at his home, which is apparently on the grounds of the Glenmont United Methodist Church in Silver Spring, where he and his wife worked as caretakers. In other words, he was arrested at his house.
Even the aforementioned Obama-era guidance circumscribed its limitations, applying only to "churches, synagogues, mosques or other institutions of worship, such as buildings rented for the purpose of religious services". There is no mention therein to "caretaker's houses", let alone church property generally.
That guidance does note that "ICE officers and agents shall consult with their supervisors if the location of a planned enforcement operation could reasonably be viewed as being at or near a sensitive location" (emphasis added), but there is nothing to suggest that did not occur.
And, of course, the "sensitive locations" policy is just that: a policy, not the law. No less an authority than "Stephen Yale-Loehr, who teaches immigration law at Cornell Law School," explained on CNN in 2017 that "undocumented immigrants" don't have legal sanctuary, even in churches. In fact, harboring an alien who "remains in the United States in violation of law ... in any place, including any building" is a crime, under section 274(a)(1)(A)(iii) of the INA.
Not that anyone at the Glenmont United Methodist Church in Silver Spring, Md., was in violation of that law, because until last Thursday, Siahaan was present — albeit under a final order and without any status — under ICE's forbearance.
That forbearance ran out at 7:00 am last Thursday. According to the Post, the ICE agents who showed up at his house told him that he needed "to come with them to make sure the GPS monitor was working." That was likely true — ankle monitors are reusable. But it did not mean that they could not take him into custody and remove him, as well. He has been under a final order of removal for 15 years, after all.
Nonetheless, his (current) lawyer has "filed a petition in Maryland federal court alleging his arrest was illegal, saying ICE entered his home without a warrant by concocting a 'ruse' about his ankle monitor." That was likely a habeas petition, as it was filed with Judge Paul Grimm of the U.S. District Court for the District of Maryland, for his release. Under section 242 of the INA, most removal cases otherwise get funneled to the circuit courts.
Warrantless entry is an issue under the Fourth Amendment, but there are two points that are unclear from all of this. One, the ICE agents likely had an administrative warrant for Siahaan's arrest, but that warrant does not permit entry into a place where an alien has a reasonable expectation of privacy (REP), such as a home. Of course, an alien can consent to an ICE agent's entry into any REP, even if the agent does not have a warrant. The question in this case is whether consent was given before or after the agents explained their reasons for being there.
This is a factual issue that will ultimately have to be decided by Judge Grimm. In my experience, this generally devolves into a he-said/he-said situation, which will be up to the court to settle out.
There is plenty to suggest that, however, Siahaan and his wife invited the agents in.
The article notes that "at the time they moved into the house on church grounds in January", Siahaan and his wife "had no reason to fear ICE would come after them", given the fact that the agency basically allowed them to live in the United States for anywhere between eight years (when the so-called "'order of supervision' agreement with ICE" was issued) to 15 years (when the final order of removal was issued).
Assuming that the agents were invited in, and assuming that they had an administrative warrant for the alien's arrest, ICE's explanation for why they wanted Siahaan to come with them is of no moment. They could simply have arrested him, as they could in any public place.
His current lawyer contends that Siahaan and his wife "will pursue asylum again ... arguing that persecution of Christians in Indonesia has intensified since their original application, leaving room for them to seek asylum again despite the missed deadline." Section 240(c)(6)(C)(ii) of the INA permits a motion to reopen at any time in an asylum case based on changed circumstances, but this, of course, raises the question of why they failed to do so in the intervening 15 years since the removal order, or even since February, when Siahaan was placed on ankle monitoring.
In this regard, the State Department's 2019 Report on International Religious Freedom for Indonesia (released in June) reveals that Protestantism (Methodism is a Protestant faith) is a "government-recognized religion[]", and in fact, 7 percent of Indonesia's 264.9 million residents are Protestants — more than 18.5 million worshippers.
Four of the country's 34 provinces are, in fact, predominantly Christian, and while there are some tensions among religions in the country (and some discrimination against Christians): "Many individuals in the government, media, civil society, and general population were vocal and active in protecting and promoting tolerance and pluralism."
In any event, this case is likely far from over. Sen. Chris Van Hollen (D-Md.) and Rep. David Trone (D-Md.) are both involved in the matter, and either could file a private bill for Siahaan and his wife. Or the BIA could reopen his case. And Judge Grimm could order him released.
I in no way countenance misconduct by ICE, and in fact spent more than seven years overseeing that agency and its predecessor, the INS. There are a lot of open questions that have to be answered before I can reach the conclusion that such misconduct occurred in this case, though.
Respectfully, however, the Washington Post article looks like just another opportunity to take a swipe at ICE, and by implication the president's immigration policies. In an election year, from an outlet that is objectively hostile to Donald Trump, I guess that is to be expected.
But I would be remiss if I did not provide some decoding of that reporting for the otherwise credulous. The real question — the one that the Washington Post failed to touch on — is how exactly, on a Thursday morning in September 2020, ICE had to execute an order of removal that was already 15 years old. In case you wonder why, exactly, there were 595,430 alien absconders in the United States as of the end of FY 2019, one needs look no further than the Afternoon Buzz.
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