The federal statute 8 U.S.C. § 1226(c), mandates detention for certain classes of criminal aliens. When a person is subject to mandatory detention there is no opportunity to seek bond from an Immigration Judge, and Immigration and Customs Enforcement (I.C.E.) itself is limited in its ability to give bond to such people. As a result, they sit in immigration detention. For people in this area, that usually means that they sit in the Plymouth County House of Correction or the Bristol County House of Correction until their case is heard.
Sometimes mandatory detention results in rather strange outcomes. I have had any number of clients who have never served a day in jail and have never even had to post bail, yet they are mandatory detainees. I have had clients who have been released from jail for a period of years, and have since never been arrested, and yet they are mandatory detainees. Imagine how devastating this can be to a person who has not been in any kind of legal trouble, in some cases for over a decade, who works and has a family and a whole host of other obligations and responsibilities and relationships and suddenly find themselves detained. To the outside world it certainly looks, and to the alien feels like they have been incarcerated for a period of several months until their case is heard. In all of my cases where I had a client in mandatory detention and we fought the deportation, we won and my client was later released. Generally, I was able to speak with their employers and keep their jobs for them, but their lives have certainly been changed and changed for no good reason. Clearly, the kinds of people whom I have described are not a risk to the society. In fact, they have been law abiding and productive members of society for years. They are not a flight risk. They were not even a flight risk back when they were in trouble in the criminal court, and they all had winnable cases. In fact, they all won their cases. Nevertheless, they were not only held, but the Immigration Judge did not have the power to help them.
This system was recently challenged in the Federal District Court here in Massachusetts in the case of Gordon v. Johnson, Civil Action Number: 13-CV30146-MAP. On May 21, 2014 Judge Ponsor granted summary judgment to a class of aliens who had been released from prison and then lived openly and in a law abiding manner for months, and in many cases many years, before they were suddenly made mandatory detainees. Judge Ponsor granted summary judgment to this class stating that I.C.E. did not have the right to come back well after they were released and hold them as mandatory detainees. Judge Ponsor applied a rather literal, common sense reading to the mandatory detention statute. 8 U.S.C. § 1226(c) provides that I.C.E. shall detain criminal aliens subject to mandatory detention “when the alien is released”.
Judge Posnor specifically held that “the phrase ‘when…released’ simply cannot mean ‘whenever immigration authorities get around to it, even decades later’”. Instead, “when released” means when released. Judge Posnor has given I.C.E. a two (2) day grace period and if there is a weekend and/or holiday involved, I.C.E. can have up to five (5) days. After that, the alien is no longer a mandatory detainee and may petition both I.C.E. and the Immigration Court for bond.
Obviously, this is a huge decision for a lot of people who have had their lives disrupted because they suddenly find themselves not only in the Immigration Court, but being held as mandatory detainees for offenses that are well in their past. It is interesting to see what happens now that all of these people are suddenly allowed to seek bond. For people who are picked up in the future, they will be allowed to seek bond just like every other alien who I.C.E. arrests will be able to seek bond, so this will cause no particular issue in the Immigration Court. What makes it interesting is that there are probably thousands of people currently being held in mandatory detention who suddenly have a right to a hearing that they never had before. However, the problem is not that the Immigration Court will be suddenly swamped with bond motions that should have been heard months, if not years ago. The problem is that for so many of these people they have been wrongly held and denied the basic protections of due process. Judge Posnor correctly stated that an “individual’s right to due process is not eradicated simply because he or she has been convicted of a crime at some point in his or her life.” These people are finally getting the due process that has been denied to them for far too long.