ICE detainees face indefinite confinement in Minnesota jails

Though he’s eligible for a green card, Kratos Fernando has been in jail for nearly four months as an immigrant detainee. 

An old marijuana case put Kratos Fernando on Immigration and Customs Enforcement’s radar earlier this year as it ramped up immigration enforcement under President Donald Trump.

ICE agents arrested Fernando, 25, in early March, and he’s been held in the Sherburne County jail ever since then. He’s since been ordered for release, he said, pending a medical examination required in order for him to obtain permanent residency in the United States. 

Fernando, an asylee who was born in Angola and has been in the United States since he was 2 years old, said he can’t afford to pay the several thousand dollars he said it would cost to have a doctor travel to the Sherburne County jail to perform the exam. For now, he’s staying in jail indefinitely. 

A similar situation faces Nadeem Khalid, held in the Sherburne County jail since last summer. Unlike Fernando, Khalid, 54, has been ordered for deportation. 

Khalid has previous convictions for stalking and domestic abuse of his ex-wife and served prison sentences for those offenses. He said he’s accepted the fact that he’ll be deported to his home country of Pakistan.

“I don’t want to fight my case,” Khalid said. “I don’t want to argue with anybody. Just deport me.”

Khalid said authorities have tried to deport him three times, including last month when he boarded a flight to his native country. He said he touched down in the United Arab Emirates and was turned around and sent back to the United States because of a military conflict between Pakistan and India. 

Fernando’s and Khalid’s situations illustrate how it’s getting harder for ICE detainees to be released from custody, even through deportation. Part of the reason is a ruling last year by the federal Eighth Circuit Court of Appeals that essentially allows detainees to remain in custody indefinitely until their immigration case is settled. 

Even after a judge orders a detainee’s removal from the country, that detainee can still sit in jail for months, even years, before being deported. Or, in Fernando’s case, even after they’ve won their immigration case. 

“I’m tired of being detained,” Fernando said.

Immigration attorneys argue that keeping detainees in jail indefinitely is costly to taxpayers. The Sherburne County Jail, for example, receives $100 a day from the federal government for every ICE detainee. They also emphasize that ICE detainees are being held for civil offenses. 

“These are not criminal detainees. Even if they are convicted of crimes, they are in jail for a civil matter,” said Nico Ratkowski, a St. Paul immigration attorney. 

Pivotal ruling 

The Eighth Circuit’s ruling in Banyee v. Garland affirmed that “due process imposes no time limit on detention pending deportation.” The case involved Nyynkpao Banyee, who had been detained by ICE in the Kandiyohi County jail for one year while he appealed his deportation order in immigration court. A federal district court ruled in favor of Banyee before the Eighth Circuit Court of Appeals reversed that decision. 

A separate ruling in 2001 by the U.S. Supreme Court allows immigrants detained by federal authorities to petition for release once they’ve been held for longer than six days after they’ve been ordered for removal. 

But the Banyee ruling, written by U.S. Circuit Judge David Stras, who is based in Minneapolis, ruled that detainees who are still awaiting judgment on or appealing their immigration case cannot petition for release from custody, a right known as habeas corpus. 

The Banyee ruling applies to the region covered by the Eighth Circuit Court of Appeals, which includes Minnesota, North Dakota, South Dakota, Iowa, Nebraska, Missouri and Arkansas. The ruling conflicts with prevailing law in other regions of the country, said Linus Chan, an immigration attorney and director of the Detainee Rights Clinic at the University of Minnesota Law School. 

“[No one] in the Eighth Circuit can claim that being detained for a long time gets you released,” Chan said. “That’s what’s changed.” 

Before Stras’ ruling, Ratkowski frequently took on habeas corpus cases for detained immigrants. Since then, not so much. “The Banyee decision basically destroyed immigration habeas for prolonged detention,” Ratkowski said. 

Now, Ratkowski said he files habeas cases for detained immigrants in much narrower situations that don’t argue for full release, such as transferring detainees to their court hearings so they don’t forfeit their bond.

It’s not clear how many ICE detainees in Minnesota and across the country have been held in jail for longer than 90 days. Chan said he unsuccessfully sought that information in a 2017 lawsuit. An ICE spokesperson didn’t respond to a request for comment. 

‘Just deport me‘

Those still eligible for habeas release in Minnesota can still find themselves in jail much longer than 90 days, even after a judge orders their deportation. Such is the case for Khalid, who was ordered for removal in May 2022 and has been in detention since last July. 

Khalid has a complicated case. He came to the United States in 1988 on a visa and in 1999 obtained permanent residency. In 2011, he was arrested on suspicion of drug possession. Then, two years later, Khalid pleaded guilty to financial card fraud. 

In 2014, the federal government opened an immigration case against Khalid, alleging that he had committed fraud on his asylum application in the 1990s. Eight years later, in 2022, an immigration judge ordered his deportation. After that order, he was charged with and convicted of stalking and domestic abuse for violating a restraining order and sending threatening messages to his ex-wife. 

Khalid is currently appealing the domestic violence conviction. Regardless, he was sentenced to 18 months in prison for the conviction and served his time. After his release, ICE arrested him in July 2024, and he’s been detained ever since. 

In the year since his detention, the federal government has unsuccessfully tried to deport Khalid three times. The most remarkable attempt came in early May, when Khalid boarded an airplane that made it all the way to the United Arab Emirates. After the plane touched down, authorities ordered Khalid returned to the United States because India had just started launching missiles into Pakistan. 

Khalid said he tried to persuade authorities otherwise.

“I said, ‘Let’s fly to Pakistan, it is only two hours away, and I will find my own way there,’” he said. “They said, ‘No, we have to bring you back.’ I’m not going to spend the rest of my life in jail; just deport me.”

Later in May, Khalid filed a habeas motion for release under supervised conditions, arguing that he is not likely to be deported in the foreseeable future. Federal prosecutors however, argued against his release and contended that his deportation date would happen sometime this month. 

That date came on Tuesday, when Khalid said he was transported to Fort Snelling to take a shuttle to the Minneapolis-St. Paul International Airport. By the time he got to Fort Snelling, Khalid said, authorities told him it was already too late and that he would miss the flight. 

He also said he had asked that someone escort him on the flight to Pakistan because of the conflicts going on there. He was sent back to the Sherburne County jail.

Khalid’s lawyer, Graham Ojala-Barbour, said he plans to file a motion early next month supporting Khalid’s release. It will argue that June came and went without a deportation. He isn’t confident Khalid will be deported by then, and even if he is, Ojala-Barbour won’t know until after the fact because of the opaque nature of immigration court.

“The logistics of how they do removals has always operated behind a shroud of some secrecy,” Ojala-Barbour said. “As an immigration attorney, it’s not really something that we’re privy to or part of.”

‘I’ve already won my case‘

Detainees like Fernando who have been ordered for release can still run into issues that keep them in jail for prolonged periods. His issue: his inability to pay for a required medical exam to obtain his green card, which he said a judge has approved for him. Fernando, who came to the United States in 2002, is currently an asylee. 

In 2019, Fernando was convicted for possessing around 1.5 ounces of marijuana and missing a court date. He served his sentence and said he’s moved on with his life. 

“I was young; I was 19 at the time,” he said. “I’ve learned from my mistakes. I have kids that I cannot let make the same mistake.”

Now 25, Fernando is married with two sons, a 3-year-old and a 1-year old. Without him at home, Fernando said, his wife is struggling to pay the bills and raise the kids on her own. 

The required health exam, known as the I-693 report, typically costs the applicant $500. Only a U.S. Citizen and Immigration Services-certified doctor can perform the exam. But because Fernando is in jail, there is an added cost: He must get the doctor to come to the jail, which costs a minimum of $1,000. He’s having a hard time gathering the money for it. 

“Some people want $2,000, some people want $3,500,” he said. “It’s ridiculous. Why can’t ICE just release me on an ankle monitor so I can take the test and pay $500? I’ve already won my case, so why would I do anything stupid?” 

This piece was originally published in Sahan Journal. For more information, visit www.sahanjournal.com.