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Matthew Kolken on Deportation And Removal

Federal Appeals Court Limits "Mandatory" Immigration Detention

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ACLU class action lawsuit argued federal government wrongly incarcerated more than 100 people a year in Massachusetts jails under "mandatory detention" provision.

October 7, 2014


CONTACT: 212-549-2666,

BOSTON — In a ruling that could enable more than 100 Massachusetts detainees per year to argue for their freedom, the U.S. Court of Appeals for the First Circuit has rejected the federal government's application of a "mandatory" immigration detention provision that prevents certain noncitizens from requesting release on bond during their immigration proceedings. The ruling came Monday afternoon in a pair of cases—including one brought by the ACLU of Massachusetts, the national ACLU's Immigrants' Rights Project, the Political Asylum / Immigration Representation Project, and Lutheran Social Services—in which noncitizens argued that they were being improperly detained without even the opportunity to request their release.

The decision is part of an ACLU class action lawsuit filed in August 2013. Following the district court's ruling in that class action in May, at least 27 people have obtained their release from detention after demonstrating to an immigration judge that they did not pose a flight risk or danger warranting continued detention. Many of them are long-time lawful permanent residents whom immigration authorities were detaining on the basis of old criminal convictions.

Yesterday's First Circuit ruling decides the core issue in that class action: "mandatory" immigration detention cannot apply to noncitizens who have been placed into deportation proceedings because of offenses for which they were released from custody long ago.

"This ruling ensures that many noncitizens in Massachusetts will be allowed their day in court to argue for their freedom," said Adriana Lafaille, an Equal Justice Works legal fellow at the ACLU of Massachusetts, whose fellowship is sponsored by Greenberg Traurig, LLP. "Rather than automatic, costly detentions of noncitizens like Mr. Gordon, who are plucked from their communities based on old offenses, the decision means that only those who need to be detained will be detained, while those who can safely return to their families while their cases are pending may be allowed to do so."
ACLU client Clayton Gordon is a named plaintiff in the class action and one of the two noncitizens whose case was decided by yesterday's ruling. Gordon came to the United States at age six, has been a lawful permanent resident for more than 30 years, and served in the U.S. Army. In June, 2013, immigration authorities detained Gordon and held him without the possibility of bond because of a 2008 drug offense, even though he spent less than a day in jail for that offense and had completed his probationary term.

After his arrest for that offense in 2008, Gordon and his fiancée had settled down, had a son, and bought a home. In 2013, Gordon was running his own contracting business and working on a project to open a halfway house in the Hartford area for women coming out of incarceration. But, as he drove to work on June 20, 2013, Gordon was surrounded by armed immigration agents, seized, and placed into mandatory detention.

In October 2013, as a result of the ACLU's lawsuit, U.S. District Judge Michael A. Ponsor ordered that Gordon was entitled to an individual bond hearing. An immigration judge granted him bond, and Gordon was reunited with his family in November 2013. Yesterday's ruling upholds the federal district judge's decision and ensures that Gordon can remain with his family while he awaits a ruling in his pending immigration case.

Leiticia Castaneda, whose case was paired with Gordon's, was also unlawfully subjected to mandatory detention. She too had been held without the possibility of release on the basis of a 2008 drug offense. Following the decision of the District Court requiring a bond hearing in her case, the government released her on her own recognizance, reuniting her with her family during the pendency of her immigration proceedings. Castaneda was represented by immigration attorney Gregory Romanovsky. The ACLU filed an amicus brief in her case.

"Yesterday the Court rejected a policy that undermines both our constitutional values and common sense," said Eunice Lee, an attorney at the Immigrants' Rights Project of the national ACLU. "Our laws don't allow the government to put immigrants in mandatory lock-up simply because they had run-ins with criminal justice system many years ago. The Court's decision prevents the irrational, unjust detention of these individuals without basic due process of law."

For a copy of the First Circuit's opinion, go to:

For more information about "mandatory" immigration detention, go to:

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