In Gordon v. Johnson, the ACLU and its partners successfully argued the government could not hold a category of noncitizens in mandatory, no-bond detention while their immigration cases are being resolved. Since 2014, the case has allowed some 200 noncitizens to be reunited with their families after showing that they did not pose a danger or flight risk that warranted detention during their immigration proceedings.
One of these noncitizens was Clayton Gordon, a lawful permanent resident and U.S. army veteran who was detained by Immigration and Customs Enforcement (ICE) and subjected to mandatory detention on the basis of a drug crime, even though five years had passed since he was released from criminal custody for that crime. He had since become a home-owner and business-owner and was raising a three-year-old son.
The ACLU obtained an order that required Mr. Gordon to have a bond hearing, and he was subsequently released on bond and reunited with his family. It also obtained a class-wide ruling making some 150 Massachusetts detainees a year eligible for individual bond hearings. Rather than being held in “mandatory” immigration detention, without a hearing, these noncitizens may now be released if an immigration judge concludes that they do not pose a danger or flight risk.
Meanwhile, in Castaneda v. Souza, a related case, the ACLU successfully argued as amicus that the government had improperly detained Leiticia Castaneda without an individual bond hearing. The case resulted in Ms. Castaneda’s release.
The government appealed the Gordon and Castaneda rulings to the First Circuit. In 2015 the U.S. Court of Appeals for the First Circuit, sitting en banc (as a full court), upheld by a tied vote the two district court decisions rejecting the government’s interpretation of the mandatory detention provision. That meant Gordon and Castaneda were not subject to mandatory detention, and could continue to live with their families while their immigration cases were being resolved.
In November 2016, the First Circuit considered the government’s appeal of the district court’s order granting bond hearings to a class of noncitizens like Mr. Gordon. The Court remanded the case to the district court for further proceedings. Although the Court vacated the injunction that guarantees bond hearings to class members, that portion of its ruling is not immediately in effect and class members must continue to receive bond hearings under the district court’s May 2014 injunction.
UPDATE: On December 12, 2018, Gordon's five-and-a-half year battle with deportation finally ended with a ruling that he and his family can remain together in the United States. Read our statement here.