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More Detained Immigrants Are Owed Bond Hearings: 9th Circ.


Only criminally convicted immigrants who enter immigration custody soon after being released from criminal custody can be detained without bond hearings, the Ninth Circuit decided Thursday in a ruling that also upheld a lower court’s class certification in the case.

A three-judge appellate panel ruled that a mandatory detention section of the Immigration and Naturalization Act applies exclusively to immigrants who were detained “promptly” after being let out of criminal custody, not to people who were detained much later.

“The statute unambiguously imposes mandatory detention without bond only on those aliens taken by the [Attorney General] into immigration custody ‘when [they are] released’ from criminal custody,” wrote Circuit Judge Jacqueline Nguyen. “And because Congress’s use of the word ‘when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

The class action was filed by three immigrants in late 2013, and although the complaint isn't publicly available, a later order from the court stated that the plaintiffs were challenging their detention without bond. The lower court granted the petitioners’ motion for class certification and issued an injunction forcing the government to hold bond hearings for all the class members, according to the Ninth Circuit’s ruling.

The Ninth Circuit panel upheld the lower court’s class certification ruling and the preliminary injunction. According to Keker & Van Nest LLP, which served as co-counsel for the plaintiffs, the Ninth Circuit’s ruling means that “thousands” of immigrants in California can now make a case against being detained.

“The Court specifically struck down the government’s practice of subjecting immigrants to mandatory detention based on crimes they may have committed years ago, even if those individuals had long since rehabilitated themselves,” the firm said in a statement.

Michael Tan, a staff attorney at the ACLU Immigrants' Rights Project, added in the statement, “Today's decision is a victory for fairness and due process of law.” The ACLU also served as counsel for plaintiffs in the case.

On the same day, the Ninth Circuit also affirmed a lower court’s order certifying a class of immigrant detainees and finding the class could have bond hearings in a case called Khoury v. Asher. Matt Adams, legal director for the Northwest Immigrant Rights Project, which represented plaintiffs in that case, said in a statement that his team is “very happy that the Court has rejected the government's efforts to overstep their authority in denying thousands of individuals their basic right to a custody hearing.”

A representative for the U.S. Department of Justice did not respond to a request for comment.

Bond hearings are an active topic in the immigration legal world. In June, the U.S. Supreme Court decided to hear a case about whether certain immigrants are entitled to an automatic bond hearing after six months of detention, adding another layer to the national debate over immigrant detention.

The plaintiffs in the first case, Preap v. Johnson, are represented by Julia Harumi Mass at the ACLU Foundation of Northern California, by Alison Edith Pennington, Jingni Zhao and Anoop Prasad at the Asian Law Caucus, by Ashok Ramani of Keker & Van Nest LLP and by Michael K.T. Tan of the American Civil Liberties Union Foundation.

The government is represented by Hans Harris Chen, Leon Fresco and Troy David Liggett.

The plaintiffs in the Khoury case are represented by Matt Adams and Christopher Strawn at the Northwest Immigrant Rights Project, by Robert Pauw at Gibbs Houston Pauw, by Judy Rabinovitz at the ACLU Immigrants' Rights Project, by Michael K.T. Tan at the ACLU and by Devin T. Theriot-Orr of Sunbird Law PLLC.

The government in that case is represented by Timothy Michael Belsan, Hans Harris Chen, Leon Fresco and Lori Warlick.

The cases are Mony Preap, et al v. Jeh Johnson, et al, case number 14-16326, and Bassam Khoury, et al v. Nathalie Asher, et al, case number 14-35482, at the U.S. Court of Appeals for the Ninth Circuit.