Deported Before His Case Was Closed
Immigrants are being deported while their cases are still pending, immigration attorneys say.
Perin Tognia was used to getting up early at the Atlanta City Detention Center (ACDC). Since he had been confined at the Georgia facility in 2017, the then 38-year-old woke every weekday at 2:30 a.m. to work for free in the jail’s kitchen.
Nothing, though, could have prepared him for what happened on April 24.
Around 2:30 a.m., Tognia said, two deportation officers shook him awake, led him out of his cell and asked him to fingerprint a document. “You have to leave,” Tognia recalled one of them saying.
But why? he thought.
Tognia, who came to the United States from his native Cameroon in 2009, said he had a stay on a 2015 deportation order because of a pending appeal in his case.
Tognia’s surprise late-night visit from ICE agents is indicative of an issue that some immigration attorneys believe is getting worse as the Trump administration continues its aggressive approach to immigration enforcement: unannounced deportation attempts in the middle of ongoing cases.
“I just think there’s no blowback” from the administration, said Paul “Woody” Scott, a Louisiana-based immigration attorney who had a different client deported in the middle of a 2017 appeal. Scott said government attorneys didn’t seem to know ICE had taken his client either until a hearing in March.
“ICE is emboldened and they’re aggressively enforcing these removal orders,” Scott said. “But there’s communication breakdowns, there’s more strain on the system, and there’s mistakes.”
A sudden disappearance
Though an immigration judge had ordered Tognia deported in 2015 for missing his hearing, Tognia said he never received proper notice about when to appear and was challenging the issue at the Board of Immigration Appeals in Virginia. As long as that challenge was pending, Tognia had a “stay of proceedings” and couldn’t be deported, immigration attorneys and advocates say.
In a panic, Tognia said he tried to explain that to officers on April 24. Before leaving his cell, Tognia said he produced a document from the immigration appeals board confirming his claim had been accepted.
It was no use.
Tognia said the officers walked him into a van and drove five minutes to ICE’s office inside the Atlanta Immigration Court building on Ted Turner Drive. It was dark, the building empty, and the officers, a man and a woman, continued trying to get Tognia’s fingerprint.
Tognia said he never actually read the paperwork they wanted him to sign. Before he could protest further, the officers ushered him back into their vehicle, where a glass partition separated him from the two people who appeared to unilaterally control what would happen to him next.
Because of an intergovernmental agreement between ICE and the city of Atlanta in effect in April, deportation officers could access detained immigrants at ACDC at virtually any time. In October 2017, upwards of 200 immigrants were housed at ACDC, and the city received $78 per day per detainee to hold them. Earlier this month, Mayor Keisha Lance Bottoms signed an executive order to end that agreement and transfer every detainee out of ACDC as soon as possible, and that’s reportedly been done.
“[That level of access] often means detained immigrants don’t know they are being deported or transferred to another facility until they are actually being taken out of the facility—sometimes during the middle of the night, which can be a terrifying experience because they don’t give you any information,” said Priyanka Bhatt, an attorney with Project South who has conducted nearly 40 interviews with detained individuals at ACDC.
Tognia said the officers drove him to Hartsfield-Jackson airport. When he refused to sign the document, he said, they took him back.
Tognia then filed a complaint with ICE’s Office of Professional Responsibility calling the deportation attempt “illegal.” Since April 24, Tognia said, deportation officers continued to approach him with paperwork and threatened to charge him with additional prison time for resisting deportation. Last month, he was transferred to Irwin County Detention Center, nearly three hours south and farther away from his Atlanta-based wife, before authorities then moved him to a processing center in Arizona.
His wife since 2017, Veronica Holmes, said Tognia called her from an airport at 2 a.m. last Tuesday. She confirmed he’s been deported to Cameroon and said she is now making travel arrangements to reunite with him.
In a statement from late July, ICE spokesperson Bryan Cox said there were “no legal impediments” to Tognia’s removal because the courts denied his appeals—though Tognia and his attorney say that’s not true. As of Monday, said Kell Enow, Tognia’s lawyer, the immigration appeals board request was still pending, even though Tognia’s in Cameroon. A clerk at the appeals board told The Appeal they could not divulge information to anyone other than a defendant or their lawyer.
Cox said officers didn’t remove Tognia in April because he “physically obstructed it.” ICE officers were enforcing a removal order from the courts, said Cox, who added that Tognia has a 2013 conviction for passport fraud/forgery.
Cox maintains Tognia didn’t have a stay of removal. According to a section of the Immigration and Nationality Act, defendants who file a motion to reopen have a stay of proceedings as long as that motion is pending before an immigration judge. But what if an immigration judge rejects the motion and a defendant appeals? Enow said immigration attorneys and government authorities are split on whether a stay applies during that time. In his briefs in Tognia’s case, Enow cited a 1996 opinion in which the immigration appeals board said a woman had a stay while challenging a rejected motion to reopen. The immigration appeals board, however, takes the position that the stay does not remain in place during an appeal.
Deported in the midst of an appeal
It’s unclear how many detainees ICE has deported or tried to deport while they are challenging a removal order.
In 2015, Tognia was one of 34,544 people who were ordered removed because they didn’t show up to court, according to Department of Justice statistics. When that happens, defendants can file a “motion to reopen,” which essentially asks a judge to reverse the ruling because of some exceptional circumstance that prevented them from getting to court. In 2015, about 25,000 people filed those motions with their courts. But only 6,000 or so people appealed those motions to the immigration appeals board. In immigration cases, defendants are not entitled to an attorney, and appeals can take several months to decide. Overall, there are 711,473 cases as of July 31.
The Appeal spoke to eight immigration attorneys in Georgia, Louisiana, and Tennessee who all said driving immigrants to the airport or trying to get them to sign deportation documents isn’t unheard of. What’s different, some said, is ICE appears less interested in allowing a person to explore all of their legal options and increasingly deports people without advance notice to them, their families, or their attorneys.
“You used to know when your client was being deported,” said William Tiku, an immigration attorney in Marietta, Georgia. “They’ll give you an opportunity … [to] prepare the client. But now … they don’t let you know what’s going on. There’s children left behind, the wife, the family. You receive calls, ‘What happened? What happened?’ Most times you don’t know what happened.”
Once people are deported, there’s no easy remedy: The person must overcome a 10-year ban from the country, plus a host of other administrative issues.
“If he wins the appeal, you can petition for them to come back,” Tiku said. “But the question is, how many families have that kind of money? Then you start dealing with other obstacles,” such as whether they have a criminal record.
Tiku said ICE agents deported one of his clients, Eric Mbugua, a Kenyan man in his early 30s with a wife and a family, in late July without notice. Mbugua, who was being held in Irwin County Detention Center, also failed to appear in court. Like Tognia, he filed a motion to reopen and appealed his judge’s decision. It was pending when the deportation happened, Tiku said.
Hard-line immigration groups often cite immigrants’ failure to appear for hearings as evidence that people are taking advantage of the process to slip out of deportation orders. But the reality tends to be far more complicated, as Tognia’s story illustrates.
Tognia came to the United States in 2009 on a temporary business visa. For years, Tognia said, he had worked for his father, a successful businessman in Cameroon who pushed him to the brink of exhaustion.
According to affidavits that Tognia’s mother submitted to his defense, he watched his father beat his mother many times growing up. “During one episode, I jumped off the second-story balcony to escape my husband’s violence, convinced that he would kill me,” Yvonne Nzoubeth Tognia wrote. “On another occasion, a male relative living in the house next door broke down the front door to my house, to stop my husband from brutally beating me. On yet another occasion, my husband stabbed me repeatedly with a knife, and my hands bear the defensive scars of this attack.”
Traumatized by the violence, Tognia did not speak until he was 7 years old, his mother wrote. At 8, she wrote, he attempted suicide by overdosing on anxiety medication. In his 20s, Tognia purposely wrecked his car. To this day, he is on a highly regimented dose of antidepressants and has claimed asylum on medical grounds.
Though he had married an American woman and applied for permanent citizenship, Tognia struggled in America, too. Before a crucial interview in 2012 with government officials, Tognia was arrested for conspiracy to commit passport fraud. In 2013, he was sentenced to two months’ custody followed by two years of probation.
That arrest led to a visit from ICE, and on June 7, 2013, two officers sat down with Tognia and explained the agency wanted to deport him. The officers gave Tognia a three-page “notice to appear” document that said he would have a court date “on a date to be set” and “at a time to be set.” Tognia had everything explained to him in English and French, his native language, the officers wrote. He was outfitted with an ankle monitor.
According to Department of Homeland Security attorneys who handle immigration cases for ICE, Tognia cut that ankle monitor, failed to appear in court in 2015, was ordered removed and was picked up by the U.S. Marshals in 2016 for violating the terms of his probation, which Tognia says he misunderstood. In court documents, Homeland Security attorneys say ICE mailed a notice to Tognia’s ex-wife’s home in 2014 telling him to show up to court in 2015. Homeland Security attorneys say Tognia had no excuse for failing to appear and that he didn’t file a timely appeal.
But according to Tognia, the officers didn’t explain anything to him in French at that June 2013 meeting. Instead, they later forged his signature saying they did, Tognia and his lawyer argued in court documents. For proof, Tognia’s legal team hired a handwriting expert in Tennessee who studied 22 samples of Tognia’s signature. The expert, Dianne Peterson, concluded in a report this year that it was “highly probable” someone else had written Tognia’s name, the date of “6/7/13” and the words “English and French” at “a subsequent date.” She also said the page of the document in question had been duplicated.
When ICE reached him in 2013, Tognia and now-ex wife were separating, leaving him homeless. The night before their June meeting, Tognia said he was on suicide watch. After the meeting, Tognia said ICE released him without a mental health evaluation and never returned his wallet, which contained his driver’s license, employment authorization papers and ID. Completely overwhelmed, unable to speak fluent English, and living in motels or with strangers, Tognia admits he cut his ankle monitor and went off the grid.
But Tognia maintains he never received proper notice to come to court. And he’s not alone.
Time and place
Tognia’s fight to remain in the country is emblematic of a regularly litigated issue that U.S. Supreme Court justices touched on in June: Whether immigrants in deportation proceedings are receiving proper notice to appear in court.
Sometime after Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, immigration enforcement developed a two-step process to notify people about their deportation proceedings. First, agents serve a notice saying they need to appear in court “on a date to be set” and “at a time to be set.” Second comes a mailed notice, months later, with a specific date. The notices give defendants up to a year to prepare sometimes—if they receive them.
The Supreme Court recently questioned how well that system works through the case of Wescley Pereira, a father of two in Massachusetts who came to America from Brazil at the age of 19. Writing the opinion for the court, which ruled 8-1 in Pereira’s favor in June, Justice Sonia Sotomayor said notices to appear need to contain the “time” and “place” to be effective.
“If the three words ‘notice to appear’ mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens “notice” of the information, i.e., the “time” and “place,” that would enable them “to appear” at the removal hearing in the first place,” Sotomayor wrote. “Conveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the Government cannot reasonably expect the noncitizen to appear for his removal proceedings.”
Since that time, the immigration appeals board ruled in a separate case in late August that the Department of Homeland Security can serve immigrants with a notice that doesn’t include a time and date as long as there’s a follow-up notice specifying that information.
In Tognia’s motion to reopen his case from July 2017, lawyer Kell Enow said Tognia and his ex-wife never received the second notice, which would have told him when his hearing was. Though government attorneys said Tognia needed to file his appeal within 180 days of his 2015 removal order, Enow countered that Tognia can “file a motion to reopen at any time if the alien demonstrates that proper notice was not given.” Tognia said he learned he had been ordered deported in the summer of 2017, when a federal criminal judge sentenced him to an 18-month detention for violating his supervised release.
Though Tognia’s arguments didn’t convince an Atlanta immigration judge, prompting two appeals, some attorneys say Tognia’s argument about failing to appear is common. Immigration enforcement spans multiple departments and agencies, “and even an English speaker would be confused” by the government’s two-step notices to appear, said Scott, the Louisiana attorney.
As he continued to fight his case, Tognia said he had frustrated his ICE deportation officers. During a phone conversation in March, Enow said one of them announced they planned to deport Tognia. Enow said he told the officer ICE couldn’t do that.
“I was trying to tell him that Tognia was ordered removed in absentia [for being absent],” Enow said in a recent interview, “and once he files a motion to reopen and appeals that motion, there’s an automatic stay. He told me that he didn’t care, that there’s a travel document for [Tognia] and that he doesn’t have an automatic stay and he’s going to deport him.”
Last week, Holmes said she flew out to Arizona to see Tognia. The facility allowed them to physically touch each other, a luxury the couple hadn’t experienced since April 2017, Holmes said. On the day Tognia called from the airport, Holmes said, she had planned to go to the facility at 8:30 a.m. to spend the day with him.
“But now,” Holmes said, “he’s gone.”
This story has been updated to include information from the Board of Immigration Appeals’ handbook.