By Nicholas Costa, Associate Attorney, NELSON | SMITH, LLC

On Tuesday, March 11, 2014, the United States District Court for the Western District of Washington made a declaratory judgment to forbid immigration authorities from denying a bond determination for certain individuals while they are detained in immigration custody.   This decision is a landmark victory against immigration authorities’ longstanding rule that certain individuals be held without bond no matter when they were picked up by immigration.  This new rule affects those residing in the Western District of Washington and includes all non-citizens detained at the Northwest Detention Center (“NWDC”) in Tacoma, WA.

For over a decade, immigration authorities have maintained that individuals with certain criminal convictions are subject to mandatory detention during the pendency of their removal proceedings under the Immigration and Nationality Act (“INA”) § 236(c) no matter when they were picked up by immigration.   This allowed Immigration and Custom Enforcement (“ICE”) to arrest and detain people without the hope of release — no matter how old the conviction was.   Congress enacted INA § 236(c) and bestowed immigration authorities with the power to mandatorily detain individuals without bond “when [they are] released” from custody for that conviction.  For example, when a non-citizen is found guilty in a criminal court, sentenced, and then released from criminal custody, immigration authorities have the power to immediately detain the person without hope of bond while their removal proceedings are pending.   However, immigration authorities have overstepped this statutory grant for over a decade.  Based on a decision entitled Matter of Rojas, 23 I&N Dec. 117 (BIA 2001) – a decision that has been overwhelmingly rejected by the United Stated District Court of Washington and other district courts around the country – immigration authorities have been applying mandatory detention to individuals any timeafter their release from criminal custody—even if that release took place almost 15 years ago, when the statute went into effect.  This scheme allowed a person with a 15-year-old misdemeanor conviction to be held without bond for six months, and in some cases, years!  These people include green card carrying Oregonians detained at NWDC who have lived in our state productively for many years working hard to support their families.  Despite the age of the conviction, the equities and relief available to some of these people, immigration authorities refused to allow any opportunity to demonstrate eligibility for their release – until now.

In a sweeping class action victory, the United States District Court for the Western District of Washington has ruled that mandatory detention of a non-citizen is only available to immigration authorities if they immediately detain the person after their conviction and release from non-immigration custody.  If the individual is not immediately detained by immigration when they are release from non-immigration custody, the individual must be allowed to demonstrate their eligibility for a release on bond or release on their own recognizance.

Be advised: Only those residing in the Western District of Washington benefit from this decision (including those brought to NWDC from other states – like Oregon).  Furthermore, just because an individual is eligible for a bond hearing does not mean they will be released on bond or released on their own recognizance.  Immigration authorities continue to have the power to determine whether someone is a flight risk (not likely to show up for their immigration hearing) or a public safety risk (e.g. they have multiple DUIIs or were convicted of a crime of violence).  If a person falls into either category, bond may be denied or set so high that a person will have no alternative but to remain in custody.

Tuesday’s class action victory gives certain detained individuals in NWDC their day in court and the ability to fight for their release — but keep in mind — release from immigration custody does not absolve a person of their duty to attend their removal proceedings.  Remember, always speak to an experienced immigration attorney if you, or someone you know, is under threat of immigration detention or is currently detained by immigration authorities.

 

For further information please click the following links:

U.S. District Court for the Western District of Washington’s class action lawsuit Order in Khoury v. Asher:https://www.aclu.org/sites/default/files/assets/5098705-0–17859.pdf

ACLU article “Federal Court Rules Immigrant Detainees Must Be Given Bond Hearings”: https://www.aclu.org/immigrants-rights/federal-court-rules-immigrant-detainees-must-be-given-bond-hearings