Class Action Victory in Mandatory Detention Battle

Contributed by Aaron Hall, Partner

Khoury v. Asher, a new case out of the Western District of Washington has changed the lives and prospects for deportation defense for many of those held in immigration detention there.

By way of background, as a general rule, those who are arrested to be put into removal proceedings by Immigration and Customs Enforcement (ICE) are allowed to have a bond hearing.  If they post their immigration bond, they will be released from ICE custody and allowed to attend their immigration hearings outside of detention.

However, certain categories of noncitizens are classified as “mandatory detention” and are ineligible for a bond.  The statue says that noncitizens that have certain categories of criminal convictions are subject to mandatory detention without bond when the noncitizen is released from criminal custody.  This law has become the subject of disagreement in federal courts where the noncitizen is not taken into ICE custody “when released” from criminal custody.  An example would be a person who has a drug conviction but finishes his time in jail and then is released and is not taken into ICE custody for a number of months or even years.  Federal courts have disagreed about whether a person in this situation is eligible for an immigration bond or whether he is subject to mandatory detention.  The latest big decision on this issue was in the Khoury case and came from Judge Richard A. Jones in the Western District of Washington, who certified a class and then granted declaratory relief to noncitizens seeking a bond hearing.

Judge Jones defined the class as, “All individuals in the Western District of Washington who the government asserts or will assert are subject to mandatory detention … and who were not taken into immigration custody immediately upon their release from criminal custody…”

All members of that class who are taken into ICE custody in the Western District of Washington will at the minimum receive an individualized bond hearing.  At this time, it’s unknown whether the Khoury decision will be appealed to the Ninth Circuit Court of Appeals.  While the Fourth Circuit and the Third Circuit have held that mandatory Courts of Appeal have ruled otherwise, the Khoury decision represents continued momentum in district courts around the country, including in Colorado, with courts holding that in order to trigger the mandatory detention provisions, the noncitizen must be arrested by ICE upon release from criminal custody.  If there is a delay between release from criminal custody and ICE arresting the noncitizen, the district court are ruling that the noncitizen should be allowed to have a bond hearing.

If you know someone who is being held by ICE in “mandatory detention” and would like to have us evaluate whether he or she might have an argument to fight for a bond hearing, contact our office to set up a consultation.