As U.S. Immigration and Customs Enforcement (ICE) arrests continue to soar across the country, federal judges in San Francisco are rebuking the agency over due process concerns and have ordered the release – at least temporarily – of dozens of immigrants being held in detention facilities across California and beyond.
The judges’ orders come in response to a wave of legal filings from attorneys representing immigrants being held in ICE detention – called “petitions for writ of habeas corpus” – arguing their clients are being illegally and indefinitely locked up without being afforded a pre-detention hearing in front of an immigration judge.
An NBC Bay Area review of 24 habeas cases filed in the Bay Area’s federal court district – involving 37 separate immigrants detained by ICE in recent months – found that in every case, judges have issued temporary restraining orders or preliminary injunctions granting the temporary release of those immigrants until their habeas petitions are resolved.
In a small handful of other cases, judges have yet to rule on the detainee’s motion for a temporary restraining order that would release them from ICE custody.
“The violation of constitutional rights is so egregious,” said Jordan Weiner, who heads the immigration defense program at the San Francisco nonprofit La Raza Centro Legal. “Just arbitrarily arresting someone who hasn’t missed any court hearings or hasn’t committed any crimes.”
Until recently, Weiner said her work typically focused on helping immigrants navigate their asylum cases, not fighting in federal court to free them from detention.
“That’s all changed because ICE agents have been waiting for them in court and arresting them,” said Weiner, who also serves on the San Francisco and San Mateo County Rapid Response Networks, which dispatch attorneys to provide legal aid when immigrants are detained by ICE.
In San Francisco, ICE agents have arrested dozens of immigrants – many of them asylum seekers – after hearings in immigration court, according to multiple Rapid Response Network attorneys. Others have been detained at routine ICE check-ins.
Immigration cases are considered a civil matter in the U.S., and immigrant rights advocates have slammed the agency for the widespread detention of people who are not being held in connection to an alleged crime.
One habeas petition, filed in late July, described the arrest of an asylum seeker who fled Peru and arrived in the U.S. nearly three years ago. When he first arrived in the U.S., according to the petition, federal agents “briefly detained him” before releasing him on his own recognizance with a notice to appear for removal proceedings in immigration court.
Since then, according to the petition, the asylum seeker had “diligently attended every immigration court hearing” until ICE agents arrested him this past July at immigration court.
A day after the habeas petition was filed, federal Judge Trina Thompson issued a temporary restraining order requiring ICE to release the asylum seeker from custody.
“District courts have routinely granted temporary restraining orders barring the government from detaining noncitizens who have been on longstanding release in their immigration proceedings, without first holding a pre-deprivation hearing before a neutral decisionmaker,” Thompson wrote in her order.
The judge has since issued a preliminary injunction ordering the immigrant’s continued release from ICE custody until the resolution of his habeas case.
“He risks being separated from his family and community, and being subjected to ICE’s inadequate, subpar medical care,” Thompson wrote in her order granting the preliminary injunction. “The public has an interest in preventing constitutional violations, and Respondents-Defendants only risk minimal harm in delaying Petitioner-Plaintiff’s detention.”
For decades, immigration judges have been permitted to grant bond to migrants who were not deemed a safety threat – and who attended mandatory ICE check-ins and immigration court hearings – until their cases were resolved.
However, a July Department of Homeland Security policy memo stated that anyone who crossed the border without permission would be classified as “an applicant for admission” to the U.S, irrespective of when they arrived. According to the memo, those immigrants would be subject to mandatory detention and immigration judges – who serve under the Department of Justice, not the judiciary– lack the authority to hold bond hearings.
In September, the Board of Immigration Appeals (BIA) – also under the executive branch – upheld the administration’s interpretation of the law. Government attorneys opposing the wave of habeas petitions hitting federal court have cited the BIA decision, and the underlying regulations, in support of keeping many immigrants in detention for the duration of their pending immigration cases.
Attorneys such as Weiner, however, say the new policy upends decades of tradition, and call the practice a violation of immigrants’ civil liberties.
“Our argument is that the constitution protects people from arbitrary deprivations of liberty,” Weiner said.
Time after time, federal judges are agreeing.
NBC Bay Area was in federal court in September when a seemingly frustrated Judge James Donato pressed an assistant U.S. attorney on why ICE continues to detain migrants without giving them a pre-detention hearing in front of an immigration judge.
“This argument has failed in every court that it’s ever been argued,” Donato told the assistant U.S. attorney.
“There’s an easy answer here, government: Just give them a hearing,” Donato added.
ICE did not respond to NBC Bay Area’s request to discuss the habeas cases or Donato’s comments.
Weiner said most, if not every federal judge in San Francisco, likely has at least one habeas case involving an ICE detainee on their plate, something that has not gone unnoticed by Donato.
“What’s the master plan for making sure we don’t have the same cases coming up again and again and again in front of every judge in this district,” Donato asked.
Weiner said she’s filed nearly a dozen habeas cases in the past few months alone, securing the release of roughly 28 migrants from ICE detention.
Jorge Valera – an asylum seeker from Peru with no criminal record, according to his habeas petition – is one of the detainees a judge ordered ICE to set free.
“Never in my country was I treated like this, like a criminal,” said Valera, describing his recent arrest at San Francisco’s immigration court. “They shackled my feet. I am not a criminal, I am not a murderer.”
Valera said he was sent to a detention center in Arizona and spent a week in ICE custody before a judge ordered ICE to release him.
Weiner said her “little nonprofit” is focusing on what they can, but they’re hoping others will take up the cause.
“I just want to show that this is how they’re spending their time and resources,” Weiner said. “I’m hoping to shine a light on the lengths that the government is willing to go. They don’t care that the local AUSAs, the local government attorneys defending these cases are overworked and fighting losing cases over and over again.”
Source: NBC Bay Area
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