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.
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