A Mistake Shouldn’t Mean Exile or Prolonged Mandatory Detention

Nyynkpao Banyee remembers vividly the first time he saw the United States. He was six years old, flying high above New York City. “If I close my eyes right now, I go back to seeing, just being above New York and seeing those lights for the first time. It was nighttime. And there was snow. I remember seeing that for the first time, just a little bit, but it was beautiful,” he recalled recently.

Mr. Banyee, his mother and younger brother came to the U.S. in 2004 as refugees fleeing the civil war in Côte D’Ivoire. His father died in Côte D’Ivoire shortly after the family arrived in the States. They resettled first in rural Pennsylvania, then moved to Philadelphia and later became lawful permanent residents. When he was about 17, the family moved to North Dakota, where he has been living for nearly a decade and now lives with his mother and his two younger half-siblings. His mother’s two sisters live nearby, as does his brother.

An inquisitive and observant child, Mr. Banyee was fascinated by drawing and comic books. Today, at 26, he is a restaurant-worker who aims to use that creativity to turn his interest in music into a career. He has ambitious plans for building up his own business. He supports his family, although he says his family is really his support system, especially his mother. “Me and my siblings talk about this among ourselves: we’ve never seen a woman or a person as strong as our mother,” he said.

A dark shadow hangs over Mr. Banyee’s bright future. He’s facing the possible loss of his liberty – deportation to a country he has never been back to since he fled as a child refugee and permanent separation from his family and the only home he’s ever known.

In 2017, when he was just 19, Mr. Banyee was arrested for robbery and later sentenced to four years in prison. He experienced a lot of fear upon being incarcerated but was inspired to turn over a new leaf. “A lot of different things kept me motivated, but I would say primarily, from the core, it was my family,” he said.

While incarcerated, Mr. Banyee worked on himself and was motivated to learn as much as he could.He read an enormous selection of novels, finance books, magazines, and worked in the prison. His favorite job was working in the library. He voluntarily completed numerous programs in peer support, mental wellness, and practical skills like budgeting and CPR.

“I just got into learning, learning, learning. I just couldn’t allow myself to be defeated [by the system].”

He wrote letters to his family and sent them the poems he’d written. He wrote so much his family couldn’t keep up. Although his family wanted to visit him as much as possible, he wanted to spare them the burden of driving the long distance from their home to the prison, and the emotional toll of seeing him in prison. They still talked on the phone frequently.

After spending years working on himself, Mr. Banyee’s release date was finally approaching: March 31, 2021. He was expecting to go home, but when March 31 came, Immigration and Customs Enforcement (ICE) agents were waiting for him at the prison. They took him into custody, and he was transferred from North Dakota to a Minnesota jail.

“I couldn’t believe it,” Mr. Banyee said. “I’ve been [in the U.S.] my entire life. I had no idea – no clue – what ICE was and what this department was capable of, or what in the world was going on.” He called his mother from the jail to tell her he was in detention again – not for a criminal reason, but because of immigration.

Why was Mr. Banyee taken into immigration detention the moment he was released from prison?

It was because of a law that Congress passed in 1996 that requires the mandatory detention of noncitizens facing possible deportation for criminal conduct. Under this law, ICE can detain noncitizens slated for deportation for a range of criminal convictions, including convictions for nonviolent, minor, or old offenses, and even if the noncitizens have already served their time and are long rehabilitated. While their deportation cases are pending – a process that can take years – noncitizens could sit behind bars indefinitely, without the right to a bond hearing, even if they pose no danger or flight risk.

Since the mandatory detention law was enacted in 1996, the ACLU has taken the lead in challenging it in the courts. My Khanh Ngo, a staff attorney with the ACLU’s Immigrants’ Rights Project (IRP), said immigration detention is not supposed to be about punishment. The only legitimate government interests in immigration detention are if a person poses a flight risk or a danger to the public. But the mandatory detention statute allows the government to detain a person without showing why it’s necessary – violating a basic principle of due process. Ngo recently appeared as counsel for Mr. Banyee before the U.S. Court of Appeals for the Eighth Circuit, where she argued that the mandatory detention statute was unconstitutionally applied to him.

“The problem with mandatory detention is that there is no individualized consideration,” Ngo said, “Our argument has always been the government needs to bear the burden of showing this person needs to be detained either by [showing they’re a] flight risk or danger.”

After nearly 13 months in detention, Mr. Banyee and his volunteer immigration counsel, the Advocates for Human Rights (AHR), won a habeas petition – a request to a court or judge to determine whether a person's detainment is legal or just – and was granted a bond hearing. An immigration judge released him on bond in April 2022. He had been incarcerated for over five years, four for the criminal conviction, and one for mandatory immigration detention.

His family and friends celebrated his release with a big feast. Every moment of freedom has been special. “I had five years taken away from a lot of our time together,” Mr. Banyee said of his family. “I’m trying to spend as much time with them.”

Today, the federal government is appealing Mr. Banyee’s habeas decision, arguing that it has a right to detain him with no limit, as long as his deportation case is proceeding. The ACLU has joined AHR to defend the habeas grant, supporting Mr. Banyee’s right to have a bond hearing and be free while he challenges his deportation case.

Mandatory detention significantly impacts a person’s ability to defend against deportation and win relief to which they might be entitled. Even though immigration detention is not supposed to be a punishment, people are often detained in criminal detention settings and subject to the same rules and limitations as people who are incarcerated.

Ngo explains there is no right to government-appointed immigration counsel, so a person in immigration detention is much less likely to be represented because they can’t work and are less likely to be able to afford a lawyer. People in immigration detention also have limited phone or email access and limited language services, preventing them from engaging with the outside world, including legal services. Often, they are isolated and unable to gather evidence to defend themselves.

The United States’ immigration detention system is the largest in the world, Ngo notes. “The conditions of immigration detention are so horrific,” she said. “No other country holds this many immigrants to try to deport them.”

Like many noncitizens, Mr. Banyee has deep roots in the U.S. and has already served his time for crimes he committed. Yet, he and many others are again deprived of their liberty through mandatory immigration detention, and face the possibility of deportation.

Some, like Mr. Banyee, are arrested immediately after their term of incarceration ends. Others are arrested years after they complete any sentence for their convictions, even though they have reintegrated into their communities and have not had any legal troubles. For many, it feels like double punishment.

“You shouldn’t be defined by one thing that took place in your history, and that shouldn’t consign you to a life of permanent banishment from the United States,” Ngo said.

Mr. Banyee has had significant success defending against deportation in his immigration court proceedings. An immigration judge and three members of the Board of Immigration Appeals (BIA) have determined that he deserves cancellation of removal, meaning that if he wins his case, he can keep his lawful permanent resident status and one day become a U.S. citizen. His immigration case is currently on appeal for the second time, before the BIA, where it can take years to resolve. At the same time, he is waiting for the Eight Circuit to decide if he can remain free on bond while he awaits a decision on the deportation case.

“Everybody makes mistakes,” Mr. Banyee said. “In my case, [I] served time, [I] actually went through the process of giving back that adhered to the principles of the society.” He feels deportation would be an extreme consequence for people, like him, who arrived in the U.S. as children, whose lives are here, and who have already served their time for past mistakes.

Mr. Banyee wants to stay in the U.S., with his family, in the country he calls home. The U.S. is the country that has molded him, that has provided him security and allowed him to have ambitious dreams while supporting his family. “I’m willing to put in the work,” he said, “just to be allowed to live that dream.”