Federal Government Wrongly Incarcerates Dozens in Massachusetts Jails Under "Mandatory Detention" Provision

August 9, 2013 12:00 am

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Immigrants Held Without Bond at Government Expense Even Though They Are Unlikely to Flee

August 9, 2013

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BOSTON — The American Civil Liberties Union has filed two class-action lawsuits, in Massachusetts and Washington state, challenging the government’s overuse of “mandatory detention” to detain non-citizens without bond while their immigration cases are pending. The ACLU brought the cases on behalf of immigration detainees who have been denied the opportunity to ask for their release on bond because of crimes for which they were released from custody months or even many years ago.

The ACLU argues that these people cannot be held in “mandatory detention” and must be given the opportunity to seek their release on bond. To date, two federal judges in Massachusetts have agreed, but the government has not changed its detention practices. As a result, the ACLU believes that more than 50 people in Massachusetts alone continue to be unlawfully detained under this erroneous interpretation of the mandatory detention provision. The new suits ask the federal court to intervene so that people wrongfully detained under this regime can at least be considered for release on bond. This would allow many of them to go home to their families and jobs while their immigration cases are being resolved, if an immigration judge finds that they do not present a flight risk or a danger to the community.

“Detention is incredibly expensive for the government and destructive to families,” said Matthew Segal, legal director at the ACLU of Massachusetts. “This case just asks the federal court to find that when immigration authorities re-arrest people who have been living their lives in the community, those cases should be looked at individually to decide whether their detention is really necessary.”

In the Massachusetts case, Gordon v. Napolitano, plaintiff Clayton Richard Gordon is a case in point. He is being detained without the possibility of bond based on a 2008 drug offense, even though he spent less than a day in jail for it and has completed his probationary term. Gordon came to the United States at age six, has been a lawful permanent resident for more than 30 years, and served in the United States Army. After he was released from his 2008 arrest, he and his fiancée settled down, had a son, and bought a home. In 2013, Gordon was running his own contracting business and was working on the construction for a project that he had dreamed of—opening a halfway house in the Hartford area for women coming out of incarceration. But, on his way to work on June 20, 2013, Gordon was surrounded by armed immigration agents. Now, under the government’s interpretation of the mandatory detention law an immigration judge cannot even consider whether he poses any danger or flight risk that warrants his detention.

“Mr. Gordon has served his sentence and paid the consequences of his conviction,” said Adriana Lafaille, an Equal Justice Works legal fellow at the ACLU of Massachusetts, whose fellowship is sponsored by Greenberg Traurig, LLP. “While his immigration case is being resolved, he wants the chance to ask the immigration judge to let him pay a bond and go back to the family that needs him, to his vegetable garden, his contracting business, and the volunteer work that he does to help his community. The law entitles him to have that request be considered.”

“The government’s position makes no sense–to subject to mandatory detention someone who has been living in the community for months and even years is a waste of taxpayer money and contrary to Congress’ intent when it enacted the mandatory detention statute,” said Judy Rabinovitz, deputy director of the ACLU Immigrants’ Rights Project in New York.

As Mr. Gordon’s example shows, in many cases, those subjected to the “mandatory detention” regime are longtime legal residents who have rehabilitated themselves, raised families, and given back to their communities. Owing to the government’s overbroad and zealous interpretation of the law, however, they are being re-arrested and held without the possibility of bond at taxpayer expense while their immigration cases are decided.

The lawsuit has being brought by the ACLU of Massachusetts, the ACLU Immigrants’ Rights Project, and the Political Asylum / Immigration Representation Project.

Similar litigation was filed last week in Washington by the Northwest Immigrant Rights Project, ACLU Immigrants’ Rights Project, ACLU of Washington, and Gibbs Houston Pauw.

For more information about mandatory detention, click here.

For a copy of the legal filings in Gordon v. Napolitano, click here.

For a copy of the order of Federal Judge William Young finding that the government’s interpretation violated the mandatory detention provision, click here.

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