The Department of Justice has agreed to pay $125,000 in attorneys’ fees after losing a class action lawsuit in Washington for its unlawful refusal to consider releasing noncitizen detainees without a cash bond.
Congress gave immigration judges (IJs) to release certain noncitizen detainees in removal proceedings upon a payment of at least $1,500 bond or conditional parole. INA § 236(a)(2). Despite the crystal clear language of the statute, the Executive Office for Immigration Review (EOIR) has for years instructed IJs in its publicly available Immigration Judge Benchbook that judges cannot order release of detainees on the condition that they attend all future court hearings without the payment of a cash bond.
Recognizing that this unfairly impacted indigent detainees who were not a danger to the public and were not a flight risk, the Northwest Immigrant Rights Project and the American Civil Liberty Union brought a class action suit in Rivera v. Lynch against the Department of Justice in the Western District of Washington. In an order dated April 13, 2015, U.S. District Court Judge Robert Lasnik certified the proposed class and granted the plaintiff’s motion for summary judgment. The order requires IJs in Seattle and Tacoma presiding over bond hearings under INA 236(a)(2) to consider granting conditional parole in lieu of imposing a monetary bond.
Despite extensive briefing on the matter, Judge Lasnik found that the government had “not articulated a coherent alternative reading of the statute” and ruled that it “unambiguously states that an IJ may consider conditions for release beyond a monetary bond.”
Last week, the judge signed off on a stipulated agreement of the parties awarding $125,000 in attorneys’ fees to the plaintiff.
Still, in the face of the plain language of the statute and the clear reasoning of Judge Lasnik’s ruling, EOIR continues to instruct IJs outside of the state of Washington that they do not have the authority to order release on the noncitizen’s own recognizance. As of December 22, 2015, the Immigration Judge Benchbook instructs IJs: “For non-mandatory custody aliens, Immigration Judges can: (1) continue to detain; or (2) release on bond of not less than $1,500… Section 236(a) of the Act does not provide for the release of an alien on the alien’s own recognizance.”
Hopefully the monetary penalty from Rivera v. Lynch will force EOIR to consider revising its unlawful guidance to its IJs. If not, it appears that the same issue will have to be litigated around the nation to make EOIR to comply with the law.
On December 8, 2015, H.R. 158 – the Visa Waiver Program Improvement Act of 2015 (“the Act”) – passed the House of Representatives and is now before the Senate. The…
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