Mandatory detention pursuant to INA 236(c) is one of ICE’s favorite tools. Immigrants who have to fight removal proceedings from detention are less likely to be able to hire a lawyer and are more likely to give up and take an order of removal. The use of this coercive tool is particularly harsh when the person has lived free in the community for years after receiving the conviction that makes them subject to mandatory detention. Yet, the Supreme Court has held that the text of 236(c) permits mandatory detention even when ICE does not immediately initiate removal proceedings. See Nielsen v. Preap, 139 S. Ct. 954, 965 (2019).
Preap expressly declined to decide, however, whether a person could bring an as-applied constitutional challenge to mandatory detention in removal proceedings initiated long after release. Can detention without the possibility of bond be justified if the conviction is for a crime committed more than a decade ago as a teenager? What if the person completed probation perfectly and committed no further crimes? What if the person went to college and established a successful career? Does establishing a family matter? Is there a point where the relationship between mandatory detention and the ends purportedly served by it—protecting the community and ensuring the person appears for removal proceedings—becomes so attenuated that it violates due process?
ACBA member Scott Mossman thought so when ICE detained one of his clients without bond in April of this year. The client had turned his life around dramatically after release from criminal custody. He had earned two college degrees. He had quickly advanced in his career. He was engaged to be married with his first child on the way. Now, after years of inaction by ICE, he faced months or years of detention during the removal proceedings. And he would not get the opportunity to show that he was not a danger or a flight risk.
Fortunately, ACBA member Judah Lakin and his partner Amalia Wille, both successful federal court litigators, generously agreed to represent the client pro bono on a habeas petition to the U.S. District Court. Attorneys Jenny Zhao and Monica Ramsy with the Asian Law Caucus also joined the case and contributed their expertise.
The team filed a habeas petition challenging the client’s mandatory detention. They also moved for a temporary restraining order to release the client if the government did not provide him with a bond hearing within 7 days. The motion asked the court to order that the government bear the burden at the bond hearing of proving danger to the community or flight risk by clear and convincing evidence. After a hearing where Judah Lakin argued the case on behalf of the client, Judge Beth Labson Freeman granted the TRO on June 11, 2021.
The court granted the TRO because it found that the client was likely to prevail on the merits of his argument that INA 236(c) was unconstitutional as applied to him. The court reached this conclusion by applying Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Mathews provides the framework for determining what process is due upon depriving a person of a private interest. It calls for the balancing of three factors: (1) the nature of the private interest; (2) the risk of erroneous deprivation and the probable value of additional or substitute procedures; and (3) the government’s interest. The court found that the client’s private interest in freedom from government restraint pursuant to INA 236(c) to be high. It likewise found the risk of erroneous deprivation of that interest to be substantial absent a hearing by a neutral adjudicator. In finding a substantial risk of erroneous deprivation, the court considered the length of time since the client’s release from criminal custody and his success in establishing a productive and law-abiding life. Finally, the court held that the government’s interest was low. The court noted that the government’s interest is not whether it can detain the client, but rather whether it may do so without an individual hearing on dangerousness and flight risk.
The court determined that the client would suffer irreparable harm absent grant of the TRO. It held that the deprivation of a constitutional right is unquestionably an irreparable injury. The court further noted the general harms of immigration detention and the specific harms that the client would experience, most prominently his inability to support his fiancee during her pregnancy or to be present for the birth of their first child.
The court therefore ordered the client’s release unless the government provided him with a bond hearing within 7 days where the government bore the burden of justifying detention by clear and convincing evidence. The decision is available through Google Scholar at Perera v. Jennings.
To learn more about opportunities to represent clients in federal court, check out the CLE presented by the Immigration Section in March of 2021: Litigating Immigration Cases in Federal Court: Leveraging Your Skills and Finding Pro Bono Opportunities. ACBA members may view it free on demand. Not a member? Join today!
This article was originally published in the ACBA Immigration Section’s June Newsletter.