On Tuesday morning, ICE officers arrested and detained Loay Ibrahim Ebayyah, 51, in Hoover, Alabama. Ebayyah—a lawful permanent resident whose most recent paperwork granted him residency through at least May 24 of next year—was confronted outside by ICE officers, placed in handcuffs, and then taken inside his home after apparently asking to say goodbye to his 18-year-old son, Khaled. [Update, July 22, 2022, at 5 p.m.: One week after this article was published, an ICE spokesperson responded with its description of the case. The spokesperson said that Ebayyah was a “Jordanian national” and alleged that he “is wanted for rape in Jordan.” She stated that “[b]etween 2016 and 2018, it is alleged that Ebayyah falsified immigration documents.” The spokesperson also issued a statement saying: “Regardless of nationality, Immigration and Customs Enforcement (ICE) makes custody determinations on a case-by-case basis, in accordance with U.S. law and Department of Homeland Security (DHS) policy ICE is committed to safe and effective enforcement of the nation’s immigration laws, and continues to focus its limited resources on cases of greatest importance to national interest and public safety.” Ebayyah’s lawyer Julie Goldberg said that Ebayyah was born in Kuwait and that “ICE forced him to sign documents that he could neither read nor understand and told him that it was only regarding his detention and nothing else.” The ICE spokesperson said, “ICE takes many factors into account when targeting and arresting individuals, including their criminal and immigration history.” She added: “ICE takes allegations of misconduct very seriously – personnel are held to the highest standards of professional and ethical behavior, and when a complaint is received, it is investigated thoroughly to determine veracity and ensure comprehensive standards, which ICE is required to follow, are strictly maintained, and enforced.”]
Khaled—who is scheduled to go to basic training on Sunday after enlisting in the Marines Corps last month—immediately called his commanding officer. When one of the ICE officers asked who he was calling, Khaled explained it was his sergeant. The officer, according to Khaled, told him “you don’t need to be on the phone with him” and took his father away without any explanation.
“It was traumatizing because I’m now enlisted in the Marine Corps right? And here’s my initial thoughts, ok, so, ‘is this how you get treated as a Muslim for serving the country,’” Khaled recalled.
Ebayyah’s arrest and continuing detention appears to contravene a memo that Acting ICE Director Tae Johnson put out in May instructing agents to consider U.S. military service by an immigrant or his family member to be a “significant mitigating factor that weighs against” enforcement action. Under the policy, officers are supposed to ask detainees about their own military service or the service of their immediate family members and to seek approval from the highest-ranking official in their field office before any further enforcement action.
But as Ebayyah’s arrest suggests, there is often a disconnect between the policies from the top and ICE’s actions on the ground. [Update, July 22, 2022, at 5 p.m.: One week after this article was published, ICE provided Slate with an update offering further details in the case. Those details are published at the top of this story.]
The new policy was put in place this past May after a 2019 report from the Government Accountability Office found that “ICE did not consistently follow its policies involving veterans who were placed in removal proceedings from fiscal years 2013 through 2018” and “does not consistently identify and track such veterans.” What happens to Khaled’s father will be one test of whether or not the new policy is actually being respected, or if ICE is continuing a pattern immigrant advocates have claimed of ignoring administration directives.
Immigration advocates have racked up a number of complaints about the Biden administration, even as the president has worked to pull back Trump-era policies. Part of the challenge of bringing ICE in line with new orders to end Trump-era policies is the conservative-stacked courts. In May for instance, a Trump-appointed judge in Louisiana blocked the Biden administration from ending Title 42, a Trump-era policy which sped up deportations of asylum seekers due to a public health emergency, even after the administration only moved to end the policy after more than a year leaving it in place. Last month another judge, this time a Trump-appointee in Texas, blocked guidance by the Department of Homeland Security ordering Immigration and Customs Enforcement to focus its immigration enforcement on threats to public safety and national security and against those immigrants who had committed aggravated felonies. And earlier this month, a panel of the ultra-conservative U.S. Court of Appeals for the 5th Circuit appeared likely to side with a Bush-appointed judge in Texas who last year ruled that the Deferred Action for Childhood Arrivals program was unlawful and blocked new applicants.
Even when the Biden administration hasn’t been stymied by the courts, though, it has reportedly received pushback from within ICE itself. For months, immigration lawyers have reported that the agency is ignoring leadership directives. In May 2021, for instance, the Intercept reported that immigration attorneys were seeing ICE refuse to follow earlier guidance on enforcement prioritization in a number of cases, with fewer than half of detainees in one survey having been convicted of an aggravated felony. In January, NPR reported that—despite lower deportation numbers largely connected to Title 42 expulsions not counting towards the total—immigration attorneys across the country believed that Trump-era ICE agents were “undermining the new [Biden enforcement] policy.” Biden hasn’t even been able to confirm a new head to that agency, with his appointee Ed Gonzalez withdrawing his nomination last month after a more-than-year long delay in the confirmation process.
The struggle to bring ICE to a heel can be devastating for immigrants and their families. In Ebayyah’s case, his detention has rocked his son who is fighting to get his father out of detention before he ships out for basic training.
“If we’re not able to get my dad out of the detention center or the county jail that they have him in beforehand, I’m going to probably end up delaying my ship date by a little bit,” Kahled said. “Because he’s the only family I have.”
To make matters worse, Kahled has received no explanation for his father’s detainment. The family’s attorney says that Loay Ebayyah has no criminal record. According to Khaled, Ebayyah also had been a military contractor with the U.S. Army during the first Gulf War, and later during the wars in Iraq and Afghanistan (that he was a military contractor overseas was confirmed by his attorney). He and Khaled have been in the United States since Khaled was 10-years-old. Both father and son have paperwork and legal status to be in the United States.
ICE won’t provide any answers for the family, lawyer, or to the press. When asked about why Ebayyah had been detained given his son’s military service, the May 23 memorandum by the interim director of ICE, and the other circumstances in the case, an ICE spokesperson said she wasn’t yet able to comment because of “privacy” concerns. That was the same explanation Khaled received when he went to the detention center with his father’s best friend where his father was being held. [Update, July 22, 2022, at 5 p.m.: One week after this article was published, ICE provided Slate with an update offering further details in the case. Those details are published at the top of this story.]
“The officer who arrested him told me he couldn’t even find a parking ticket in his name,” Khaled said. “My following question was why was he being detained, why was he being held at a detention center, and why can’t I see him or talk to him? And he was just telling me, ‘I can’t let you know, it’s private.’”
The May 23 directive instructs “[o]fficers and agents [to] investigate all claims of U.S. military service by a noncitizen” and says that in the case of family members of service members “agents should obtain as much detail regarding the immediate family member’s U.S. military service from the noncitizen as possible.” That should include, “interviews with noncitizens and [efforts to] affirmatively inquire whether the noncitizen is currently serving, or has served, in the U.S. military, or if an immediate family member is currently serving, or has served, in the U.S. military.” Khaled, though, appears to have been blown off and doesn’t even know why his father is being detained.
It’s unclear the extent to which all the instructions of the May 23 memo were followed in this case, whether the system just needs time to process the case, or whether or not there are circumstances that offer a plausible explanation for Loay Ebayyah’s detention.
What this detention makes clear, however, is the ongoing challenge the Biden administration is facing when enacting its immigration policies. The administration has been heavily criticized for its approach to immigration from both the left and right. While anti-immigrant hardliners in the GOP castigate Biden for a drop in deportations, pro-immigrant activists have noted that Biden has retained—or expanded—some of the worst immigration policies of the Trump era. How Loay Ebayyah and others like him are treated going forward, though, will point to the extent to which one of the few remaining pro-immigrant actions taken by the Biden administration that so far has been allowed to stand in federal court will actually have any weight, or will crumble like so many previous policies.
