Judge rules ICE unlawfully detained a Seattle man. He's not alone

As U.S. Immigration and Customs Enforcement looks to deport a million people nationwide, attorneys say unlawful arrests are on the rise.

Matt Adams, an immigration attorney in the Seattle area, has been filing habeas corpus cases for immigrants locked up at ICE processing centers, including people held at the facility in Tacoma.

“A habeas case is when we go to court and tell the judge our client is being unlawfully locked up,” Adams said. “They're imprisoned in violation of the law, and the court should order their release.”

Adams is also the legal director for the Northwest Immigrant Rights Project. The nonprofit has filed or helped others file dozens of habeas cases across the country this year. Adams said the organization is winning cases in a number of states, such as California and Nebraska.

“We've seen these habeas petitions prevailing in the Western District of Louisiana," he said. "These are not courts that are traditionally receptive to immigration habeas claims.”

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A wrongful arrest occurs when a person’s rights are potentially violated when arrested by law enforcement, for example, if someone is not given a chance to contact an attorney or told why they’ve been arrested.

Several people have also used habeas cases to win their release from the Tacoma detention center, cases with similarities to an arrest this summer that impacted a family in West Seattle.

It was late July, and Cheryl Eugenio was in the parking lot of the Department of Homeland Security building in Tukwila with her three children when she checked her phone. She had a missed call and a voicemail from her husband, Alan Phetsadakone.

“Hey, I’m getting taken in,” he said. “I’m going to be in Tacoma, the Tacoma detention center. I’ll try to call later, OK? Alright, I love you guys. Bye.”

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Phetsadakone had gone in for a routine check-in with ICE, as he had done for the past few decades. Eugenio said there was no notice, no indication at all that they were going to detain him — a red flag that a lawyer would later key in on, and a common thread in other unlawful arrest cases.

But in the moment, Eugenio didn’t know what was happening.

“I've replayed it, like, ‘Did I hear that right?’” she said.

Moments after she heard the voicemail she went into the Tukwila federal facility to find out why her husband had been arrested. Eugenio said ICE agents wouldn’t answer her questions or provide more information.

Phetsadakone was brought to the U.S. at the age of 3 as a refugee from Laos. More than 20 years ago, he was convicted of a nonviolent felony for bank fraud, for which he got a deportation order. At that time, Laos refused to accept deportees, so he was released on the condition that he check in regularly with ICE.

Earlier this year, the federal government began attempting to deport former refugees like Phetsadakone. Eugenio saw the stories, but didn’t expect it could happen to her husband.

“At first, I was still in shock,” she said. “It's like all these thoughts running through your head. Like, what's my next step? What do I have to do?”

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Word about Phetsadakone's case spread through their community in West Seattle, and he was able to get help from the Seattle Clemency Project.

“The government [was] trying to expeditiously deport him,” said Jennie Pasquarella, the organization’s legal director.

Pasquarella and her team allege Phetsadakone’s arrest was unlawful, because ICE didn’t notify him of their intention to suspend his supervised release and attempt to deport him.

“He's been dutifully checking in with ICE as required under his order of supervision, and so, when he went for his check-in just this past July, he thought it would be the same as it always has been,” Pasquarella said.

Pasquarella also said Phetsadakone’s attorney during his original federal case failed to properly represent and advise him about the immigration consequences of his felony conviction. That finding could lay the groundwork to potentially throw out that conviction, the foundation of Phetsadakone’s deportation order — and he could get legal status again, this time through family members who are citizens.

In court, government attorneys argued Phetsadakone had a standing deportation order, and that they had the required documents to re-detain him and send him to Laos.

But Phetsadakone’s lawyers said those documents weren’t signed by any immigration official, and the deportation papers were only presented after he was detained — another red flag.

U.S. District Judge Jamal Whitehead in Seattle said the inconsistencies raised serious questions of due process, suggesting ICE didn’t follow its own rules of supervised release.

“These disputed facts and gaps in the Government’s evidence undermine its claims that it followed the procedures required by its own regulations,” Whitehead wrote in a court document. “While the government has an interest in executing removal orders, agencies cannot act unlawfully even pursuing legitimate ends.”

In that same document — a temporary restraining order against the federal government — Whitehead ordered ICE to release Phetsadakone.

Before he was arrested, Phetsadakone and his wife had been taking stock of their life, putting things into their garage for donation and organizing kitchenware and home goods into piles.

They do this every time their kids move forward in a stage in their lives. One of their oldest children has started college. Their youngest is now a teenager.

Standing in front of a garage full of donations, a truck his father-in-law gave him to fix up, and a grill, Phetsadakone was clearly proud of the life he and his wife had created. Despite everything he's been through, he said he remains excited about the future.

“I don’t know how to explain it,” he said. “It’s like America in a sense.”

He’ll have to check in with ICE again this week and in the coming months. Phetsadakone still has to fight his deportation in court. But, he said, that will be a lot easier from outside of detention.