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Wednesday, April 22, 2009

The curious case of David Kihuha

What do you do with a Kenyan on an expired visa who just won’t go home?

In the curious case of David Kihuha, the U.S. 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 remains in a cell in Leavenworth, and he’s made it abundantly clear he prefers prison in America over freedom in Kenya.

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. "That is the fuel that feeds his intransigence," his federal public defender, Melody Evans, said in court. "Whatever his circumstance here, it cannot be worse than what he faces at home," wrote Evans, who declined to comment further on the case.

Just 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. Belabouring 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."

The government’s frustration with Kihuha is evident in documents filed after his indictment last year for refusing to leave. "Dumping defendant out the door of the plane with a parachute is not practically or diplomatically prudent," the government noted at one point. "Delivering defendant to the front gate of the nearest Kenyan Embassy is also not on the list of approved repatriation techniques," the government said in another court filing.
As for his methods, government prosecutors said, he has "crafted a relatively painless plot" to prevent his deportation "and he has done so at the mere cost of occasional dignity."

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 in America that he has reportedly become unpredictable and uncooperative, even with those who are trying to help him. While Kihuha is "no picnic" to have in prison, the government says, "he is not mentally ill, and his behavior is 'generally acceptable.' "

But detention for more than 20 months in four different facilities hasn’t been any picnic for Kihuha, either. 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. "It is really quite unfair," Kihuha said, "because when you don’t know much about the law, they take advantage of you."

Kenyan in Leavenworth for 13 years on an expired student visa refuses to go home. he always manages to escape deportation.


The government argues that it must sedate Kihuha to get him on a plane. That alternative, they maintain, is "certainly less intrusive than a straitjacket, (remember the defecation) covered by a body bag, (remember the spitting) …" government attorneys noted in court filings. What’s more, they say, "a smiling, if uncommunicative, defendant is less frightening to the other passengers than a thrashing body bag, which may become still, due to positional asphyxia." 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.

Kihuha must be medically evaluated to make sure sedating him would be safe, but the government agency charged with doing that, the Division of Immigration Health Services, or DIHS, has balked. Critics say the practice is controversial and potentially life-threatening. While the government hasn’t said what drug it will use in Kihuha’s case, in the past it has used an anti-schizophrenia drug called Haldol, which has serious side effects. "The protections of the Constitution are unambiguous," said Ahilan Arulanantham, a lawyer with the American Civil Liberties Union who brought the lawsuit that last year put a stop to the drugging. He said the Kihuha case shows that the government still doesn’t understand that. The Kenyan Embassy agrees: "They (the deportees) are not supposed to be drugged. It’s a violation of human rights," an embassy official said. ICE spokeswoman Pat Reilly said that the agency has been granted only one order for sedation recently and sought one other. "We cannot talk about where or for whom these orders were required," she said.

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. But at this point the U.S. government has only tentative approval to send a charter to Kenya.

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.

In the meantime, his resolve remains firm. As government prosecutors noted: "A case like this reminds the bored American of the gifts that geography and luck can bestow."

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