This morning, we won bond for our client, who is mandatorily detained under 236(c) and hence, subject to mandatory detention. The Government lawyer, flanked by his supervisor, strenuously contended that mandatory is mandatory, but the Immigration Judge (“IJ”) found it in his jurisdiction to grant bond due to our creative lawyering and excellent grasp of recent case law.
Most attorneys never challenge the detention of a client under 236(c). It simply does not appear to be winnable. Our client, a lawful permanent resident (“LPR”) since 1986, has a conviction for two crimes involving moral turpitude, which makes him ineligible for bond under 236(c). He was detained on June 28th in usual ICE-SWAT style. His family panicked and called our office for help.
Our client had never served any time in jail. Even following his conviction in federal court, he was simply given home detention with an ankle-monitoring bracelet. Hence, his family was shocked and aghast that immigration authorities would grab him from his home and detain him when the federal court did not think that was necessary! We explained that this was business as usual and we would do everything in our power to get relief from removal for him, but also explained that since he had two crimes involving moral turpitude, he was mandatorily detained under 236(c). However, we also explained to them that he was eligible for LPR Cancellation of Removal under 240(A), since he has lived in the U.S. as an LPR continuously for more than 25 years and has no aggravated felony. Therefore, we promised to work on his relief application.
However, our client was still unhappy. Since he had not made any provisions for his long-time business, he had no one to look after it in his absence and it started to fail without his expertise. He had a pressing need to be out of detention due to his business, and his family consistently asked whether there was an opportunity for him to get bond. We clearly explained to them, on several occasions, that the likelihood of that happening is zero to null.
Still, his wonderful and loving family did not quite get why he was detained mandatorily. They were anxious to get him out. To keep up with our reputation of zealously defending our clients, I consistently called the law clerks at EOIR to ask whether the NTA had been filed. I called the EOIR hotline almost every day to see if his Master Calender had been scheduled. Two weeks flew by. The clerks at the Court told me that DHS had not filed the NTA for our client and he was not in their system. I also called the DHS on many occasions to ask them to file the NTA but never got a response from them. I either got routed to a person who did not know what was going on or did not have the file or simply got a voice-mail.
Angered by what appeared to be DHS lethargy as usual, I asked Andres Benach what we should do to get them to file the NTA with the Court. Andres, since he is absolutely brilliant, suggested filing a Matter of Joseph Hearing, not because it is winnable but because it would at least get the NTA filed with the Court. We thought we would not win it but it would serve its purpose, which was to get the client a speedy hearing since he was prima facie eligible for relief from removal under 240(A).
I waited for instructions from Thomas who agreed and gave me the task of drafting the Matter of Joseph Hearing motion. We filed it on July 19 and the IJ granted it, setting the bond hearing for August 21, 2012, followed by a Master Calendar Hearing. We finally had the NTA filed with the Court and we seemed to be back on track with getting our client his day in front of an IJ.
We had three weeks to draft the motion for his custody and bond determination hearing. I went into every office at Benach Ragland and whined about how this was an impossible task since he was mandatorily detained under 236(c). And truth be told, it is an impossible task. In order to guide me, Thomas handed me a copy of Diop v. ICE/Homeland Security, a Third Circuit case, where the Court had ruled that mandatory detention becomes unreasonable after a certain point. Of course, in Diop, the client had been detained for over two years, while our client had been in detention for like a month. He also gave me a copy of the handy ACLU Practice Advisory on Prolonged Mandatory Detention and Bond Eligibility, telling me that I had to come up with something because we were about creative lawyering and zealously providing for our clients.
However, none of the usual arguments for why our client should be granted bond even if he is mandatorily detained appeared to hit the nail on the head. He had not been detained for long enough. He had not been released from custody and then detained at a later time. He did not have any medical needs. Still, we found Diop helpful because it used the concurring opinion of Judge Kennedy in Demore v. Kim to say that after a certain point in time, mandatory detention may violate due process and demand a hearing. The Third Circuit in Diop also concluded that when mandatory detention becomes unreasonable, the burden shifts to the Government to show at the bond hearing why continued detention is consistent with the purpose of preventing flight and danger to community. We latched onto that.
We also took a road-trip to visit our client in detention, something that more lawyers ought to do. Our client has great equities. He has been a long-time resident of the United States. He has a U.S. citizen spouse and three U.S. citizen children. His mother is a lawful permanent resident who resides with him. He is the owner of a successful business that employs 13-14 U.S. citizens and lawful permanent residents. He did not commit any violent crimes so he is not a danger to the community. He is not a flight risk since he has a business to manage, family to provide for and clearly eligible for relief from removal. He would never repeat what he did. If we could prevail in shifting the burden to the government to show why he was a flight risk and danger to the community, and have a battle over equities, we should surely prevail at both the bond hearing and cancellation hearing.
On August 17, I hand-delivered our motion for a bond and custody hearing to both the Immigration Court and ICE Office of Chief Counsel, in which we argued that our client had been mandatorily detained for an unreasonable period, which gave the IJ jurisdiction to determine his bond, and that mandatory does not mean mandatory beyond a reasonable period of time. Last night, we worked till 9pm to compiled 466 pages of evidence, including 22 letters and over 2000 petition signatures, for his 42(A) Cancellation of Removal application and filed it with the Court today before his bond hearing. I also mailed a copy of it to USCIS to fee it in and I am eagerly awaiting the fee receipts.
Going into the bond hearing, the IJ gave us the opportunity to tell him why he had jurisdiction over the case. Thomas explained that since our client had been detained for 54 days before getting his first hearing, he had been held for an unreasonable period of time. He also stated that the case had been unreasonably delayed, in part, due to failure of ICE to file the NTA with the court in a timely manner. The IJ appeared to agree with Thomas that the detention was unreasonable but also explained that DHS had in fact, filed the NTA with the court on July 2, 2012, in a timely manner. It was due to Court error that the client had not been scheduled for a hearing until the Court received his Matter of Joseph hearing motion. The IJ appeared almost apologetic for the court error and repeatedly stated that Mr. Ragland was diligent in his zealous efforts to get a speedy trial for his client.
The Government virulently opposed the grant of any bond and repeatedly stated that mandatory means mandatory. After the IJ found jurisdiction because he also thought that the length of time our client had been detained was unreasonable, he appeared to shift the burden to the Government to prove why our client should still be detained. The Government argued zealously that our client had committed very serious crimes and would likely not prevail at merits. The IJ listened intently but he sided with Thomas and granted the bond order!
The Government countered that they would file for an automatic stay within 24 hours, which means that even if the judge grants bond, ICE plans to challenge it and our client would remain detained. In response, the IJ stated that he did not have any individual merit hearing on his calendar for this year! Our client would need to remain in detention till January 2013 in the least! Seeing the predicament of our client, the IJ gave us the only administrative time available on his calendar for an individual merits hearing: September 7, 2012.
Outside the courtroom, the Government announced its intention to appeal the bond decision and file an automatic stay. Later in the day, we spoke again with the Government attorneys and they decided not to pursue the automatic stay.
This means that our client is free to go home to his wonderful family and come back to court for his cancellation hearing, for which we are preparing zealously. His family is absolutely ecstatic about having him back. He can go back to his business and provide for his family, which is all he has wanted to do ever since he got detained. We expect to go to court on September 7, 2012 and win his cancellation of removal so his family can put this behind them, and everyone can move on.
I learned two vital lessons from this. One, we must not concede every allegation the Government makes and we must actually make the Government do their job. Mandatory does not really mean mandatory. And second, family is absolutely critical to winning relief in immigration court. If it was not for the incredibly effort and support of his loving family, our client would face a much more lengthy detention.