An Unruly Deportee Puts the US in a Legal Bind

Mike McGraw, Kansas City Star, April 18, 2008

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In the curious case of David Kihuha, the government wants to resume a rarely used and controversial practice and sedate him, then put him on a one-way flight to Nairobi.

But that has proven to be difficult, at best.

Indeed, the case of the 36-year-old Kenyan, a former Olathe resident, has frustrated federal prosecutors, hobbled the government’s deportation system and led to the unusual tactic of indicting Kihuha on federal felonies for, in essence, refusing to leave.

As the drama plays out in U.S. District Court in Kansas, Kihuha (pronounced Kee-hoo-ha) remains in a cell in Leavenworth, and he’s made it abundantly clear he prefers prison in America over freedom in Kenya.

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Fearful that returning home could be dangerous, Kihuha–who has been in the United States 13 years on an expired student visa–sought asylum because of violence in Kenya.

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How determined is Kihuha? Since he was denied asylum, Kihuha has used every means available to avoid deportation.

Twice last year, when immigration agents tried to deport him, Kihuha managed a last-minute reprieve. He bit, he spit and, according to government records, managed to “cover himself in his own excrement.” He also chewed up a head covering known as a “spit mask.”

“I told them I did not want to go. I told them to take me back to jail,” Kihuha said in a phone interview from his cell.

Belaboring the obvious, the government noted in court filings that commercial pilots “will not accept a violent, feces-besmeared passenger who chews off protective clothing and spits and bites.”

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Some who know him say Kihuha is no poster child for the sympathetic immigrant. And since going to jail, he has become so obsessed with remaining here that he has reportedly become unpredictable and uncooperative, even with those who are trying to help him.

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He has been segregated in a federal holding facility in Leavenworth and confined to his cell for up to 24 hours a day. At one point Kihuha allegedly sabotaged his toilet, forcing him into the all-too-familiar situation of having to live with his own excrement.

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The sedative solution, however, has limits and numerous drawbacks. Until last year, the government used “pre-flight cocktails” on hundreds of deportees. But a lawsuit and outrage by some immigration groups severely limited the practice.

Now, U.S. Immigration and Customs Enforcement, or ICE, wants to resume sedation in Kihuha’s case and at least one other. Government lawyers claim ICE has the legal authority to do so on their own, but doing so without a court order would violate new policies adopted last year.

So the government has asked a judge to order them to do it. Even as that request is pending, however, immigration officials are having their own internal debate over the practice.

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Even if federal officials prevail with Kihuha, their problems may not be over. If commercial airlines refuse to board a sedated, semiconscious deportee, the government may have to deport Kihuha–and perhaps other sedated Kenyans–on a chartered flight.

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In the end, if Kihuha is convicted, he could serve a year or more in a federal prison before he is finally sent home–sedated or otherwise. And that is what he seems to prefer.

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