In a move that could affect tens of thousands of detainees, a federal judge in Seattle has ordered the Department of Justice to obey a law that allows for the release of some undocumented immigrants without posting a bond.
Immigration-rights leaders say the law is routinely ignored in Washington and elsewhere in the United States because of a conflicting Department of Justice (DOJ) policy that requires immigrant detainees to post at least a $1,500 bond regardless of whether they pose a danger or flight risk.
“People should not be locked up while they are in immigration proceedings simply because they do not have money to pay a bond,” said Matt Adams, the legal director of the Northwest Immigrant Rights Project (NIRP).
In ordering that the DOJ follow the law, U.S. District Judge Robert Lasnik on Monday also certified a lawsuit filed on behalf of one such detainee by the American Civil Liberties Union of Washington and NIRP as a class-action, sweeping in hundreds of plaintiffs who are being detained on immigration holds solely because they cannot post bonds.
Adams said that while Lasnik’s ruling now only affects undocumented immigrants held in Western Washington — he estimates there are about 500 people in the Seattle and Tacoma areas who fit that scenario — the DOJ’s policy impacts tens of thousands of detainees nationally.
“We are hopeful this ruling will have an impact,” on a practice that has been in place for 15 years, he said. “This is a national problem.”
Nicole Navas, a spokeswoman for the Department of Justice in Washington, D.C., said the DOJ was “reviewing the judge’s order.”
The lawsuit was filed in October on behalf of Maria Sandra Rivera, a Honduran woman who said she was fleeing torture and domestic slavery when she illegally entered the United States on May 29, 2014. She was picked up by agents from Immigration and Customs Enforcement (ICE) that same day and sent to the Northwest Detention Center in Tacoma, according to the lawsuit.
Rivera sought asylum and passed a “credible fear interview” with an asylum officer, who referred her case to Tacoma Immigration Court, the lawsuit said. In the meantime, ICE determined she posed no flight risk or threat to the community and recommended bond, which was eventually set by an immigration judge at $3,500, according to court documents.
Rivera could not afford that amount and asked that she be released on her own recognizance — a process called “conditional parole” — which is allowed for in the Immigration and Nationalization Act.
However, conditional parole is routinely denied in Seattle, Tacoma and elsewhere in the country, Adams said, because of a conflicting DOJ policy that requires an immigrant detainee post at least $1,500 bond regardless of whether he or she poses a danger or flight risk, according to court documents.
Rivera had been detained more than four months when the suit was filed in October. She has since been granted asylum and released, according to the court docket.
Adams said hundreds of other immigrant detainees are in the same situation when it comes to posting bond.
“The result of this policy is that Immigration Judges require individuals such as Ms. Rivera to post bond even after determining that neither danger nor flight risk require their detention,” according to the lawsuit. “Thus, indigent or low-income individuals like Ms. Rivera … routinely suffer continued and unnecessary detention, of, if it is even possible, are forced to strain personal, family and community resources in order to gain their release.”
Adams wrote that the policy “unquestionably violates” the immigration act.
The government has fought the lawsuit, attacking the court’s jurisdiction and arguing the case is moot because Rivera has since been released.
Assistant U.S. Attorney Erez Reuveni of the DOJ’s Civil Division in Washington, D.C., argued in pleadings in the Rivera case that the Board of Immigration Appeals is poised to address a similar case on its own and argued that Lasnik should hold off on any decision and let that process play out.
But Lasnik, in the order issued Monday, said that the immigration court’s blanket refusal to consider conditional parole for immigrant detainees potentially impinges on a detainee’s due-process and liberty interests, and that Rivera had standing to challenge the policy.
The government also argued that Lasnik was barred from second-guessing the immigration judge, but Lasnik said the application of the policy wasn’t the point.
“While an [Immigration Judge’s] discretionary judgment in how it applies the statute is not subject to review, this Court has found no authority supporting the notion that [an immigration judge] has the discretion to misinterpret the statute under which he operates,” Lasnik wrote.
He ruled that the Immigration and Nationalization Act “unambiguously states that an immigration judge may consider conditions for release beyond a monetary bond,” and found that the agency’s policy violates the law.
“The court thus finds that aliens who are detained following defective bond hearings … may immediately challenge their hearings for legal error on the grounds that their continued detention is an unnecessary harm,” Lasnik wrote.
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