In an order issued earlier this week, Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania held that the mandatory detention statute, INA § 236(c), 8 U.S.C. § 1226(c), does not allow DHS to detain individuals indefinitely without a bond hearing. Alli v. Decker, No. 4:09-CV-0698, slip op. (Aug. 10, 2009). The two individuals in this case had been detained for 9 and 20 months respectively.

The Court’s decision is available here.Nielsen v. Preap, No. 16-1363: Generally, aliens who are arrested on the basis that they are believed to be deportable may apply for release on bond or parole by proving at a hearing that they would not endanger others and would not flee if released from custody. See 8 U.S.C. §1226(a). Congress enacted an exception, however, under §1226(c), mandating that certain aliens thought to pose a heightened risk of engaging in further crime or failing to appear for their removal hearings be arrested and detained without a chance to apply for release on bond or parole.

If for some reason the noncitizen has not been deported after 90 days, release is granted or denied based on an internal Immigrations and Customs Enforcement process. Section 1231 does not explicitly require that the noncitizen be afforded a bond hearing.The Respondents argued that they may be released under 8 U.S.C. § 1226. Under Section 1226, the Department of Homeland Security may arrest and detain a noncitizen “pending a decision on whether the alien is to be removed from the United States.”

The Government instead maintained that the respondents were not entitled to bond hearings. Whether the respondents are entitled to a bond hearing depends upon whether 8 U.S.C. §1226 or 8 U.S.C. §1231 applies. Section 1226 applies “pending a decision on whether the alien is to be removed from the United States,” and allows for a bond hearing before an immigration judge.

In its place, Secretary of Homeland Security Jeh C. Johnson announced the Department of Homeland Security’s (“DHS”) new Priority Enforcement Program (PEP). But, with some slight differences, PEP really isn’t any different and seems far from being any more compassionate than Secure Communities.BackgroundThe Immigration and Nationality Act (INA) provisions regarding identification, detention, arrest and removal of aliens (8 USC §1226(c); 8 USC §1226(d); 8 USC §1226(e); 8 USC §1227(a) (2); and 8 USC §1228) and the INA provision regarding liaison activities with internal security officers and data exchange (8 USC §1105) purportedly provided Secure Communities, and now, PEP its basis for legal legitimacy.ICE’s propaganda behind Secure Communities was its commitment to improving community safety by transforming the approach in which the federal government cooperated with state and local law enforcement agencies (LEAs) to identify, detain and remove aliens convicted of a serious criminal offense.

Id. at 7. The R & R also suggested that the court impose reporting requirements for the three facilities to ensure ICE’s compliance with this “good faith” review, including: twice-weekly reports on migrants that ICE releases, information on at-risk detained migrants, twice-weekly reports on migrants that have no prior criminal convictions or pending charges, and reports on the number of migrants being mandatorily detained pursuant to 8 U.S.C. § 1226(c). Id. at 8-9.

Reid and Brito are both class actions challenging immigration detention. For Reid class members, they must file a habeas corpus petition arguing that their detention under a 1996 mandatory detention statute, 8 U.S.C. § 1226(c), has become unreasonably prolonged, so they now deserve a bond hearing. For Brito class members who already had an unconstitutional bond hearing under the general detention statute, 8 U.S.C. § 1226(a) (agency case law required them to bear the burden of proof), they must file a habeas corpus petition arguing that the outcome with a government-borne burden of proof could have been different.

In Preap, the Court considered whether ICE could arrest migrants who have been released from the criminal custody that justifies ICE’s detention, sometimes for years. The detention law at issue, INA § 236, 8 U.S.C. § 1226, consists of two parts. Section (a) grants ICE discretion to detain almost anyone who is potentially removable.

A hardworking father, Mr. Lora was detained by immigration officers in an early morning raid in his Brooklyn, New York neighborhood in 2013, taken to a jail across state lines in Kearny, New Jersey, and placed in deportation proceedings—all based on a 2009 nonviolent drug conviction for which Mr. Lora served no jail time. His mandatory immigration detention over three years later devastated both him and his family, as he was the caretaker for his then two-year-old son, who was placed in foster care.The government argued that the denial of his ability to seek release was proper under INA 236(c), 8 U.S.C. § 1226(c), which mandates immigration detention for noncitizens convicted of certain types of crimes when they are released for those offenses. Mr. Lora filed a petition for a writ of habeas corpus with a federal district court.

In a published decision released last week, the First Circuit Court of Appeals held that the mandatory detention provision, INA § 236(c), 8 U.S.C. § 1226(c), applies only when a person is released from custody for a removable offense enumerated in § 236(c). 24 I&N Dec. 602 (BIA 2008).