Blog by Adriana Lafaille of the ACLU of Massachusetts and Anant Saraswat of Wolf, Greenfield & Sacks, P.C.

A Massachusetts federal court case has yielded important lessons for an upcoming argument at the U.S. Supreme Court about the scope of mandatory immigration detention. In Nielsen v. Preap, the Supreme Court will consider whether the government is permitted to detain noncitizens with certain criminal convictions during their deportation proceedings without giving them a chance to request bond, regardless of how serious the crime was, how long ago the conviction occurred, or what the immigrant has done with his or her life since that time. The government has argued that U.S. Immigration and Customs Enforcement (“ICE”) needs this authority to satisfy a Congressional mandate to protect the public from noncitizens who are supposedly dangerous or who will not show up for their immigration hearings. But evidence obtained in the Massachusetts case undermines the government’s claims. 

The man at the heart of the Massachusetts case is a U.S. Army veteran named Clayton Gordon. Clayton came to the U.S. at the age of six as a lawful permanent resident and grew up in Connecticut. He completed three years of probation for the one offense on his record, a 2009 drug conviction.

By 2013, Clayton had met the woman who would later become his wife. Clayton and Kim—a U.S. citizen—had together bought a house and welcomed their first child. Clayton ran a contracting company and was even working to open a halfway house for formerly-incarcerated women.

Although Clayton’s conviction was behind him, ICE was digging through old records trying to locate immigrants who it might be able to deport. And one day, ICE found Clayton.

On June 20, 2013, Clayton said goodbye to his fiancée and toddler and left for work, unaware that he was being watched by ICE agents. Down the street from his house, these agents pulled him over, detained him, and put him into deportation proceedings based on his drug offense.

Also based on that offense, Clayton was held in mandatory immigration detention—i.e., detention without a bond hearing. With his family left struggling to pay legal fees and make mortgage payments, Clayton was on a fast-track to deportation and had no way to get out of custody unless he won his deportation case from behind bars, a difficult feat.

Others had suffered similar abductions while going about their daily lives: One man who had completed a criminal sentence a decade ago left home to run an errand and never came home. His detention by ICE years after he had rebuilt his life crushed his five- and eight-year-old daughters, left his wife struggling to make mortgage payments, and caused his entire family to lose his employer-provided health plan—including his step-son, who had to defer cancer treatment.

Another man who had been home for eight months after serving a one-year sentence walked out onto the balcony to check on his mother’s plants and did not come back inside. For hours, his mother had no idea where he was; she later learned he was in ICE custody.

In a class action lawsuit, Clayton and immigrants like him argued that they were being improperly classified as mandatory immigration detainees and deprived of the chance to ask an immigration judge for bond at an individual hearing.

The statute at issue, 8 U.S.C. § 1226(c), requires ICE to “take into custody any alien who” is subject to particular criminal grounds of removability, “when the alien is released” from criminal custody, and it prohibits these noncitizens’ release from immigration custody on bond. Legislators explained that the statute’s purpose was to ensure that noncitizens with certain convictions could serve their sentences, be taken directly into immigration detention, and then be held without bond during the rest of their deportation proceedings (and, if they lost, until their deportations).

In 2001 case called Matter of Rojas, the Board of Immigration Appeals acknowledged that the statute’s “when released” language called for the immediate detention of noncitizens being released from criminal custody for the relevant categories of crimes. But it interpreted the mandatory detention provision to apply regardless whether those noncitizens were in fact detained “when released” from criminal custody. Because these grounds of removability have been read to include offenses as petty as jumping a turnstile, the Board’s interpretation sweeps up noncitizens who years ago committed a minor offense, preventing them from being considered for release.

As a consequence of that precedent, Clayton and others were denied the basic process of a hearing before a judge where they could present evidence in support of their release, despite the years that had passed since their last contact with the criminal justice system.

Clayton brought a class action suit in August of 2013. In his case, the federal district court rejected the Board’s interpretation and held that the mandatory detention applied only to noncitizens detained “when released.” Clayton, who had been detained five years after his release from criminal custody, had certainly not been detained “when released.” And so Clayton was granted a bond hearing and—after five months of detention—was released on bond. Ultimately, the court certified a class of individuals who the government had not taken into ICE custody within two business days of their release from criminal custody and issued a class-wide injunction.  

At argument before the First Circuit, the government characterized the injunction as “unworkable.” The First Circuit remanded the case to the district court to consider this argument and others in the first instance. Among other issues, it urged the district court to require the government to describe “what practical problems, if any” had resulted from the injunction. Following an agreement by the government to keep the injunction in place during the remand, the petitioners conducted limited discovery into the government’s enforcement practices and the characteristics of the class.

Although the case is now stayed pending the Supreme Court’s resolution of Preap, Gordon v. Napolitano is the only case in the country that has developed an evidentiary record relevant to the question of the government’s ability to take custody “when released.” This record contains some key lessons.

First, the government’s claims about the injunction’s unworkability were not borne out. Instead, the government acknowledged in open court and in a deposition that if it knows of a noncitizen’s release from criminal custody, it can generally detain the individual at the time of his release, such that the individual would not become a Gordon class member.

This was an important concession. For years, the government argued that it was being hampered by some localities’ non-compliance with detainers (requests by the federal government to local jurisdictions to hang on to an individual who would otherwise be released for up to two business days to allow ICE time to take custody). It is still raising that argument to the Supreme Court.

But after it was forced to actually examine the facts in Gordon, ICE acknowledged that it is generally good at learning about noncitizens’ dates of release from correctional institutions, and that—so long as it knows about an individual being released from criminal custody—it can generally assume custody with or without detainer compliance. And if that is the case in Massachusetts, where a Supreme Judicial Court ruling prevents all state officials from holding noncitizens for ICE, then it is likely to be even more true in jurisdictions that hold people on ICE detainers.

Second, the discovery yielded a better understanding of the individuals whom ICE fails to detain “when released.” According to the government, which assembled information about the approximately 400 class members that that had been identified between May 2014 and December 2016, by far the largest category of impacted individuals are those who never served any time in jail. In other words, the largest category of individuals who benefited from the injunction in Gordon—more than two hundred of them—were people who would otherwise have been held without a bond hearing for months or even years while their immigration cases were proceeding on the basis of crimes for which the criminal justice system had not seen fit to incarcerate them for even a single day. (The second largest category, involving less than three dozen individuals, are individuals who received sentences of time served.)

Third, when individuals were not detained on the day of their release, they typically were released to the community for significant periods of time.

For the 169 class members for whom the government identified both the date of release from criminal custody, and the date of ICE detention, the shortest reported custody gap was 13 days. Just 18 individuals (11% of those with reported custody gaps) had gaps of 60 days or less. Thus, for 89% of the individuals for whom there is gap information, the time between their criminal and immigration is measured in months or years, not in days or weeks.  

Specifically, 15% (26 people) were out for between two and six months, 21% (36 people) between six months and one year, 34% (57 people) between one and five years, and 19% (32 people) more than five years. Overall, 53% (89 people) had a gap of more than one year, while 47% (80 people) were out for less than one year. The median gap was 399 days (13 months), and the average gap was just over three years. And if anything, these statistics skew in favor of smaller gaps because it appears that release information is more likely to be unavailable for older crimes.

Fourth, the ability to seek a bond hearing made a meaningful difference. Overall, for the 278 noncitizens for whom the government has identified the outcome of a bond hearing, about half (141, or 51%) were able to persuade an immigration judge (or, in a few cases, ICE) that they did not pose a danger or flight risk, and thus merited bond (or, in at least one case, release on conditions). Not surprisingly, individuals who were picked up by ICE years after their release from criminal custody fared better: Among individuals with a longer than five year gap between their criminal and immigration custody, 68% of those for whom bond hearing information is available were granted bond, as compared to 35% of those with a custody gap of 90 days or less.

The government identified sixteen people who were detained by ICE more than a decade after their release from criminal custody. Bond hearing information is available for 14 of the 16 and reflects that 11 (79%) were granted bond. If not for the injunction in this case, each of them would have been unable to even request release.

Limited information from a similar class action in the Western District of Washington reflects that the availability of bond hearings had a sizeable impact there, too. An initial status report that the government provided Plaintiffs showed that, as of June 2014, immigration judges granted released on bond in 86% of cases (30 of 35 bond hearings) and denied release in 14% of cases (5 of 35 hearings).

The impact of release on bond is profound.

The named petitioners in this case either won their immigration cases or are continuing to fight them. Before their release on bond, their families were struggling to stay afloat and they were on a fast-track to deportation. Being released has enabled them to work both to support their families and to hire the legal assistance that they need to navigate the complex field of immigration law. Because of such assistance, one petitioner is now a U.S. citizen. 

Clayton, too, has made important progress in his case. In late 2016, three years after ICE put him into immigration proceedings as an “aggravated felon,” the Board of Immigration Appeals has finally recognized that his drug conviction is not in fact an aggravated felony. That holding means Clayton is back in immigration court, where at an upcoming hearing he will be able to argue to an immigration judge that the equities in his case warrant allowing him to remain in the United States.

In the meantime, Clayton and others will be watching the Supreme Court closely to see whether others like him will be locked away without a key, or will have a chance to demonstrate that there is no reason to lock them up and separate them from their families during their immigration proceedings.


Adriana Lafaille is a Staff Attorney of the ACLU of Massachusetts. Anant Saraswat is an attorney at Wolf, Greenfield & Sacks, P.C. Both are counsel for the Petitioners in Gordon v. Napolitano in the District of Massachusetts.

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