Lawsuit challenges ICE's detention of immigrant at Sherburne County jail

A 42-year-old refugee from the Democratic Republic of Congo is being wrongfully detained in a Sherburne County jail and should be released, according to a federal lawsuit filed this week.

Rushinga Muzaliwa, who has a criminal record, is stuck in jail despite having served time for his crimes and despite a judge's ruling in January that he should not be deported to his home country for fear he could be tortured.

The lawsuit filed Monday in U.S. District Court in Minnesota accuses U.S. Immigration and Customs Enforcement (ICE) of using a "blanket" policy meant for deportation proceedings to detain Muzaliwa and other immigrants even after it becomes "extremely unlikely" that they'd be removed from the country.

Muzaliwa, who has lived in the U.S. for the past six years, is the plaintiff in the lawsuit. A University of Minnesota law clinic and the American Civil Liberties Union (ACLU) of Minnesota are helping him challenge the detention.

"The practice of holding people in jail after they've been granted humanitarian protection is unconstitutional, and it's unjust," said Kirsten Schubert, a partner at the law firm Dorsey & Whitney and an adjunct professor with the University of Minnesota Law School's Center for New Americans. "It keeps them away from their families and communities for months without reason."

Shawn Neudauer, a spokesman for the ICE office in St. Paul, said that the agency "does not comment on pending litigation." The commander of the Sherburne County jail referred questions to ICE.

The lawsuit seeks to represent other immigrants detained under the St. Paul office's "blanket" policy — a 90-day detention period that Schubert says is inconsistent with ICE's national guidelines. The legal team has counted about 40 immigrants who have been similarly detained in Minnesota in recent years.

It's tough to challenge such detentions on an individual basis because an immigrant might be released before a case makes it through the court system, said Becky Cassler a third-year law student at the University of Minnesota. "So before you get a chance to make law that becomes precedential, they might be released."

Muzaliwa came to the U.S. in 2010 as a refugee, the lawsuit says. In 2013, he was convicted in Michigan of domestic violence and third-degree child abuse.

"But he served his time," Cassler said, adding that "that's not a justification for his detention."

The Department of Homeland Security started removal proceedings against him last year.

But on Jan. 14, a Minnesota judge granted Muzaliwa's request for protection under the United Nations Convention Against Torture, because he likely would be tortured in his native country, according to the lawsuit.

Muzaliwa's legal team argues that there's no evidence ICE is working on removing him to a country other than his homeland. There is little chance, they say, that Muzaliwa will be deported.

"What they're required to do, if a judge says you can't deport these people … you have to release them," said Charles Samuelson, executive director of the ACLU of Minnesota. "And they're not doing it."

Muzaliwa's case stems from another: Nelson Kargbo, who was detained for more than two years. An immigration judge ruled last year that it would be dangerous for Kargbo to be sent back to Sierra Leone, where he had been forced at gunpoint to become a child soldier. But he was held in a Carver County jail for weeks longer, before ICE finally released him in October after a ruling by a federal magistrate judge.

Because of Kargbo's plight, the legal team that worked on his case — which included Cassler and others from the Center for New Americans — began asking around to see if such detentions were common.

Jenna Ross • 612-673-7168