Yet another federal district court judge has determined that holding certain immigrants in detention without a bond hearing violates federal law. The American Civil Liberties Union (ACLU), Asian Americans Advancing Justice–Asian Law Caucus, and lead counsel Keker Van Nest, LLP, has challenged the federal government’s practice of arresting and detaining certain immigrants for months at a time without providing an opportunity to demonstrate that they are not a danger to the community or pose a flight risk.
United States District Court Judge for the Northern District of California, Yvonne Gonzalez Rogers has joined the majority of district courts that have found that the practice of mandatory detention without bond violates the very statute the government has relied upon to justify its practice. Specifically, Judge Gonzalez Rogers ruled that the statute that subjects immigrants detained by Immigration and Customs Enforcement (ICE) “when released” from criminal custody to mandatory detention without a bond hearing only applies to immigrants who are detained by ICE immediately at the time of their release from criminal custody, and not at any time thereafter. The named plaintiffs were picked up by ICE months, sometimes years, after their release from criminal custody. The government had argued that “when released” should be read to mean “any time after release.” The Judge rightfully rejected such an unnatural reading and held that “‘when released” means means what it says,”–that is, at the time an immigrant is released from custody. The Judge’s Order granting a preliminary injunction and certification of the proposed class and denying the government’s motion to dismiss the suit is worth reading– it provides a clear and concise overview of the law at issue and is a model of thoughtful analysis.
Those of you who have been following the story of my detained grandmother client in various news outlets or on my Facebook page may recognize the photo in the ACLU press release. That is her in the photo. She was also wrongly held subject to mandatory detention by the government and the ACLU was motivated in part to bring this class action suit based on her experience and the successful writ of habeas corpus challenge this office brought together with the ACLU Northern California.
While her 2 plus years in immigration detention was unconscionable, it has wrought some positive changes in the system. Although she has been released from immigration detention, her case remains pending in immigration court. It is possible her case may yet inspire more positive changes.