(from Press Release) – On August 4, 2016, the U.S. Court of Appeals for the Ninth Circuit affirmed the ruling in Mony Preap et al. v. Johnson. The class action successfully challenged the federal government’s practice in California of detaining certain immigrants without bond, often for many months, while they face deportation proceedings. Today’s ruling means thousands of California’s immigrants may now make an individualized case against their detention, thereby safeguarding families and correcting an injustice.
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. By refusing detainees bond hearings at which they could demonstrate their fitness for release, the government unnecessarily rips immigrants away from their families, communities, and livelihoods; as well as compromises their access to representation. Many immigrants caught in the mandatory detention dragnet are longtime residents of the United States who have rehabilitated themselves and raised families.
To challenge this government policy, Asian Americans Advancing Justice, the American Civil Liberties Union of Northern California and Keker & Van Nest filed suit on behalf of three immigrants who were taken into mandatory detention for minor crimes they had committed many years ago. They all had records of employment, strong family relationships and aspirations to become citizens. The three organizations filed the class action on behalf of all similarly situated persons in California and in May of 2014, won our motion for a preliminary injunction and motion for class certification. That victory initially blocked the mandatory detention policy throughout California, where 20% of the country’s immigration detentions occur. The appellate ruling affirms the injunction against the government’s unlawful practices.
“Today’s decision reminds us we must remain attentive to our government’s use, and as in this case, misuse of power. So that when the government oversteps, we remind it of the proper scope of its authority,” said Keker & Van Nest Partner Ashok Ramani.
“Today’s decision is a victory for fairness and due process of law. People who have served their time, turned their lives around, and are supporting their families should not be condemned to mandatory lock-up. In America, everyone should get a chance to see a judge before their freedom is taken away,” said Michael Tan Staff Attorney at the ACLU Immigrants’ Rights Project (IRP).
Preap v. Beers
Most immigrants who are detained by Immigration and Customs Enforcement (“ICE”) and placed in deportation proceedings are eligible for release on bond. Under a broad and incorrect interpretation of federal law, however, each of the named plaintiffs in this case has been denied the opportunity to challenge his detention while deportation proceedings are pending. The lawsuit proposes that the named plaintiffs, and other immigrants similarly situated within California, should have the opportunity to make an individualized case against their unconditional detention before an immigration judge and be considered for release.
Asian Americans Advancing Justice – Asian Law Caucus (“Advancing Justice – Asian Law Caucus”) and the American Civil Liberties Union of Northern California (ACLU-NC), with co-counsel Keker Van Nest LLP, filed a statewide class action lawsuit challenging the current federal policy of detaining certain immigrants without giving them the opportunity to prove they pose no flight risk or danger to the public.
Under the challenged policy, immigrants who are fighting deportation can be locked up for months, irrespective of their individual circumstances, as their cases progress with no opportunity for custody review by an immigration judge. Mandatory immigration detention is an extraordinary deprivation of physical liberty without procedural protections. The advocates urge that immigrants are entitled to go before an immigration judge to request release while they fight their deportation cases.
The suit was filed in the Northern District of California and seeks a court ruling establishing that mandatory detention be reserved for the narrow group of individuals defined by law: people who are transferred to immigration custody immediately upon their release from criminal custody for specific, enumerated crimes.
On May 15, 2014, the Court granted Plaintiffs’ Motion for Preliminary Injunction against the application of mandatory detention to this special class of immigration detainees, granted Plaintiffs’ Motion for Class Certification statewide, and denied Defendants’ Motion to Dismiss.
On January 5, 2015, Defendants filed a consolidated appeal with the U.S. Court of Appeals for the 9th Circuit. The appeal was argued on July 8, 2015.
On August 4, 2016 the U.S. Court of Appeals for the 9th Circuit affirmed the district court’s ruling. Establishing that the government’s practice of detaining such individuals without bond hearings contradicts the plain language of the detention statute.
“Indeed, the imposition of robotic detention procedures in such cases not only smacks of injustice, but also drains scarce detention resources that should be reserved for those aliens who pose the greatest risks,” ruled Judge Nguyen.
“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. By refusing detainees bond hearings at which they could demonstrate their fitness for release, the government unnecessarily rips immigrants away from their families, communities, and livelihoods”
Isn’t it illegal for someone that did not come here legally to work in this country? So they are still breaking the law right?
Sam, Frankly, Barack Palin, et al.:
It does help to actually read a court decision before deciding to comment one way or the other, as well as to learn a bit about what the law actually says, who the law impacts and who it does not. The Court in the Preap case struck down the practice of detaining noncitizens (including lawful permanent residents, lawful nonimmigrants with work, student, tourist, etc. visas, as well as those without status) without even the possibility of a bond hearing. This included people that had old convictions such as for shoplifting, being under the influence of marijuana, possessing marijuana, being in a place where drugs are used, possessing paraphernalia such as a pipe, bong, wrapping papers, etc., writing a bad check, and on and on, in addition to more serious offenses. So now does the gov’t practice that was struck down make less sense to you?
Here is a “real life” scenario: Immigrant #1 comes to the U.S. legally on a student visa from Iran. Eventually marries a US citizen and they have two children together. Marriage unfortunately falls apart, though immigrant in that time frame should have become a lawful permanent resident had he not hired an attorney that eventually was disbarred. Immigrant became a very successful small businessman, hiring a number of U.S. citizens and becoming beloved in the mid-sized town where he lived and worked — many of whose citizens were quite aware that he was “undocumented” including local law enforcement, D.A. and judges. Immigrant did extensive community service, including providing transportation to the elderly, stopping to help tourists for free whose cars broke down, etc. and was widely known as someone who would “offer the shirt off his back.” Unfortunately, in his younger and less wise days, he had entered into a usurious loan agreement with an employer who encouraged him to take the loan (at about 40% interest) from the employer to start a new business. When immigrant fell behind in payments, he panicked, took money from his employer’s till and went to a casino, hoping to win enough to pay his overdue loan payments as well as repay the till. That plan of course did not work, he was charged with and pled no contest to embezzlement, sentenced to one year and put on probation (and made all restitution payments). Fast forward 25 years. ICE arrests him at home, with his USC fiancée watching. ICE claimed immigrant was subject to mandatory detention. He suffered two months in the Sacramento County jail, his employees lost wages, his business almost went under.. and yet he maintained his good spirits, distributing jail snacks to those with no funds, advising younger men to mend their ways, and not getting angry with the guard who told him to drink out of his toilet when the sink in his cell stopped working. Finally he was released and an Immigration Judge granted him residency through the petition of his adult US citizen son.
Immigrant #2 has lived in the U.S. for 30+ years as a farmworker and cattle ranch foreman. He has been a lawful permanent resident for almost 25 years. His wife and his 5 children are all U.S. citizens. His four grandchildren are all U.S. citizens. His youngest son, an adult, is severely disabled and relies heavily on his father. His employer relies on him as the only full time employee on the corporate ranch where he works and cares for the grounds and the cattle. Due to a ranch accident with a three-wheeler while herding cattle, his eardrum was shattered and his face fractured. After surgery and years of painkillers, his doctor finally told him to stop taking the painkillers as his liver was becoming adversely impacted. The doctor recommended medical marijuana, which was then prescribed. Client got his medical mj certificate, which allowed him to grow his own plants. His daughter called the local sheriff to be certain he could really grow the plants, and being assured that was so, he decided to grow them not on the ranch belonging to his employer, but rather on a small piece of property 20 odd miles away that he owned and hoped to build a small house on to retire to some day. An abandoned RV had come with the property, and because he could not easily travel to water his medical mj, he traded living space in the RV to a struggling low income man, in exchange for watering the marijuana plants. Immigrant was ultimately convicted of “cultivation” of marijuana, because under California law, you are not allowed to let someone else water your medical marijuana plants, other than your own caregiver. This conviction also would have resulted in mandatory detention had it not been for the Preap case in the lower court. The employer would have had no one to receive the incoming cattle nor to assist the cows in giving birth. The family would have lost their main breadwinner, and the disabled son his hero. As it was, the client spent over a week in ICE custody before a judge was willing to set bond — ICE refused to do so. The judge, a former U.S. Attorney, merely advised the immigrant: “Next time buy your marijuana, don’t grow it.” Those who remain in mandatory detention are stuck there for many months and often years while their cases wind their way through the dysfunctional system.
There are also numerous cases where domestic violence victims who are spouses of U.S. citizens, get convicted of shoplifting which they do to feed or obtain diapers for their children because their abuser gives them no funds to do so, and threatens them with deportation, beatings or death if they report him to the authorities. Their crimes subject them to mandatory detention — but does that make sense?
Detaining productive people who are breadwinners, fathers, mothers, and well-loved community members at great cost to taxpayers, with no hearing as to whether these people are a flight risk or danger to the community (bond factors that do actually make sense) not only is a violation of constitutional due process, it just makes no common sense.
And Sam, no it is not a crime to work in the U.S. without authorization. It is a civil violation of a visa status if that status does not allow work, and it is a civil violation for employers to hire people that do not have proper work authorization. I’ll bet each one of you has either yourself hired or have a friend or relative who has hired a person without proper work authorization to do some task for you — whether it is to clean your house, care for your child or elderly parent, mow or landscape your yard, etc. Remember the political “nannygate” scandals of elections not so far back? And many, many people come to this country legally, but work here or there outside of what they are lawfully allowed to do. That actually means they have violated their status and have become, as a result, “undocumented.” Think former Gov. Arnold Schwarzenegger (never proven because he didn’t allow release of his immigration file, but likely fiven the history of his early days in the U.S.), think Melania Trump (no one here on a working visa must leave the U.S. every few months to get their passport “stamped” but those here on tourist visas must do so… and they are not legally allowed to use that visa to reside here long term nor work.).
As for the Ninth Circuit being so far “left” and reversed more than other Circuits — its decisions are probably also upheld more than any other circuit, because… it is the LARGEST circuit court and issues the most decisions. And there are many 9th Circuit decisions on immigration law that are far from liberal — in fact the Court defers to the Board of Immigration Appeals’ decisions in many areas, though it is not a “rubber stamp.” We don’t want our courts to “rubber stamp” government decisions, now do we?
David hit the nail on the head — the problem here was no due process — none at all, and a misinterpretation of the statute, which was draconian enough on its face.
Ann Block
Let’s just start and stop with #1.
I believe I don’t even need to explain this. At least I hope not.
The painstaking detail that your post and the article goes through to try and make it seem like what they have done was acceptable. It is not my concern how many children they have had while they are in the US, if their community loves or hates them or if their fiancé is going to USC in the fall. You can say they came here legally on a visa and forget to mention that they failed to leave when that visa ran out. You can say that others have done it. You can say that I have employed someone who has done it. You can call it a civil penalty instead of a crime. The bottom line is that they did not follow the process to legally immigrate to the US and I don’t think that should be rewarded, encouraged or accepted.
But I think the other bottom line is detention without due process of law.
Yes, I get that, and they are entitled to due process. Just stop glossing over the fact that they did not follow the law while living in this country. Sorry, they did not follow the civil code, statute, ordinance, permitted process, rules……
Perhaps I was not clear enough, or perhaps an open mind and more careful reading would have helped you see that one of the stories involved a person who came here legally, and then should have become a permanent resident years ago were it not for the failing of his disbarred attorney and the other was about a person who was and IS here legally — for more than 25 years. The first one (who is now a legal resident) had more than one legal opportunity to change his status years previously from temporary visa to permanent resident, under our laws. His attorney failed him. He stayed here to (1) support his two US citizen children and (2) because his father, a high gov’t official, was murdered after the Iranian revolution and his entire family became refugees elsewhere in Europe. I thought my posts were long enough without even more facts and the facts would engender some real thought and empathy, perhaps I was wrong. My point here was to acknowledge that these two people made mistakes, yes. They are human. Did their mistakes years prior with otherwise stellar contributions to their community and country merit being detained without bond? Very conservative people who know them, including law enforcement, said no. And the 9th Circuit ultimately said no.
And since you didn’t read my post carefully nor did you read the 9th Circuit case, you obviously missed the point that many of these people suffering mandatory detention ARE here legally. But even if they were not, detention without due process is unconstitutional.
I realize that immigration law is complicated, convoluted and illogical at times, but it is also important to keep an open mind, particularly about something you don’t clearly understand and ask questions. You might also investigate how broken the current immigration system is, to the point that it separates families attempting to legally immigrate for years or even permanently.
Sam
August 10, 2016 at 8:16 am
Yes, I get that, and they are entitled to due process.
all this article dealt was the procedural issue of due process rights
Immigrant #1 comes to the U.S. legally on a student visa from Iran.
Did they leave when the student visa ran out or did they just stay past the time when they were required to leave? Or did he stay here illegally after his visa ran out?
Did the lawyer work on his case for 25 years and then get disbarred?
Immigrant #2 has lived in the U.S. for 30+ years as a farmworker and cattle ranch foreman. He has been a lawful permanent resident for almost 25 years.
What about the 5+ years? Unlawful resident? Civil penalty resident? Immigrant lacking the required paperwork to work in the US? Just call it what it is, he came here illegally.
If you want to tell a story about the lack of due process in the court system, just tell it and I am sure that people will understand, like I said before they should be given due process in the courts. But please stop trying to justify or hide the fact that these people also broke the law.
“The employer would have had no one to receive the incoming cattle nor to assist the cows in giving birth”
There are 94,708,000 people currently not working in this country. I am sure that one of them could have helped the farmer with his cows.
they don’t want to do that work, Sam…and why would they…they would no longer qualify for their obamaphones and they have never seen a cow, so who would hire them???? really????
that 94 million figure is not a particularly accurate or useful number. the question is how many of those people are looking for work and how many would do that particular job if they are looking for work.
94,708,000 shows that the labor participation rate is the lowest in 38 years. If you want to use the number of people that want to work full time but are not then the number is about 15,000,000. I am still sure that you can find one of them to help.
David posted a press release that said:
> The class action successfully challenged the federal government’s
> practice in California of detaining certain immigrants without bond,
I think the “certain” immigrants are “illegal” immigrants…
Potentially. But the problem is detention without due process of law.
The 9th Circuit… basically an arm of the ACLU and left-wing politics.
Frankly…basically the one just to the right of General Franco.
The Reagan appointee, who was one of the 3 judges who issued the opinion, might be surprised by your blanket characterization. Sometimes it’s helpful to read beyond the first lines of the caption page (“UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT”) before expressing an opinion on an appellate court decision.
The Ninth Circuit Court of Appeals… the most activist, left and SCOTUS-reversed of all federal circuit courts.
Maybe he ran out of lip balm. That seems to happen anytime the facts fail to fit the reactionary canon.
About time!!
Last week in Baja I met a lovely woman, born in the US, and had 3 of 4 children in the US (one was born while traveling home)……. she had to move to Baja when her husband was deported and she wanted to keep the family together…says she never knew what he did or didn’t do…and it was a horrific experience for them all. I didn’t even know such things went on.
She said they are all much happier now…have good jobs and so on.
I am sure that such stories are much more the norm than the exception. Happy to see this tide shifting…
“says she never knew what he did or didn’t do…and it was a horrific experience for them all”
So he was in the US illegally and was convicted of a crime and then held in a detention center and she did not know what he did?
Is that the Boy Scouts or the Girl Scouts?
more mexicans are crossing the border back to Mexico these days than coming into the US>>>.that per a Fed Gov report in Nov/Dec 2015….based on the “most recent statistics of 2013″…..
there is more and better work and there is more and better housing and there is clean water and food (no processed GMO garbage)….and why the hell not?
and, it is way safer, despite the travel advisories done by the US>…
and somehow the “affluenza” fugitive was caught and deported back to the US within days….and yet the US can never find a single drug dealer to extradite back to wherever?????
Do you really believe that? Though that’s the narrative that the Obama administration would like you to believe.
whether you believe or disbelieve a given report is less important than what we learned from the great recession – immigration flows are subject to market forces – supply and demand of labor. that suggests a market solution may be better than a legal one.
DP wrote:
> what we learned from the great recession –
> immigration flows
Since only some illegal aliens get Obamaphones when they get here how are you tracking illigal “immigration flows”?
I own property in Baja…and I not only believe it, but it is verified by the Mexican government ……much more trustworthy than the current BO government.. 🙂
and, we just bought my “retirement” place in Capay and there are “help wanted” signs all over…orchard worker and such…and there are not enough workers…
my son, the Mechanical Engineer, is learning how to drive a tractor as we cannot find someone to come work it 🙂
Pay better and you’ll find workers.
Just find someone in civil penalty status and pay them cash under the table. They save on taxes, you save on taxes and employee comp insurance and it’s not illegal! Why pay more for labor when the US has created a labor group for you to exploit?
he he…the going rate in Capay right now is $20/hour for laborers….
and, did you know that not long ago I was advised that the job place in the Los Altos area was encouraging those hiring the laborers to pay cash under the table…I was appalled..
That is a federally sanctioned nonprofit getting many dollars in federal grants…and that is what they told my friend who showed up to hire some day laborers…..
is that really legal? really or are you also pulling my leg????
and in the fields of Cabo, where Driscoll organic has their farms, those workers are being paid the minimum wage of $8 per day…or less if housing and food are provided…
and do not support those giant “organic farms”….they need a Cesar Chavez there to help them..
but why would someone want to work in Capay for $20/hour in the 105 degree heat, when they could work in Mexicali in air conditioned comfort???? and have cheaper cost of living etc???