Lawyers say that it’s been harder for their clients who have been detained by immigration officials in Maine to get a bond hearing from the U.S. Department of Justice.
In December, U.S. District Judge Patti B. Saris in Massachusetts ruled that certain New England immigrants in the government’s custody are entitled to bond hearings. Immigration court judges across the country have been instructed by their chief to disregard a similar declaration from a U.S. District Court judge in California, according to reporting from Reuters.
The directive does not come as a surprise, lawyers said.
A Minnesota judge recently ordered that Todd Lyons, ICE’s acting chief, appear in court to explain why hundreds of detainees there are being held without bond hearings, despite court orders, according to The Associated Press. The judge is expected to cancel his order after the government on Tuesday released an immigrant whose detention led to the ruling.
The order last month from Saris applied to immigrants who were detained by U.S. Immigration and Customs Enforcement or Border Patrol and who have not recently arrived in the country. It does not apply to immigrants who have been convicted or charged with certain violent offenses or who have already been ordered to be removed from the country.
Boston lawyer Annelise Araujo said the Justice Department’s refusal to hold bond hearings “has resulted in the surge of habeas petitions that have occurred in every district court across the country, in the hundreds.”
“It creates an emergency that shouldn’t exist,” Araujo said.
A habeas petition is filed any time someone being held by the government wants a U.S. District Court judge to rule on the constitutionality of their detention — including in immigration cases, which normally fall outside the federal court’s purview and are considered by immigration courts, which are run by the Department of Justice.
In dozens of rulings throughout New England over the last year, including more than 25 in Maine, judges have ordered that the government provide bond hearings and release immigrants from their custody.
“The problem is that ICE has machinery that can move (people) very quickly out of our jurisdiction,” said attorney Jenny Beverly, with Haven Immigration Law in Portland, which has tip sheets on its Facebook page in English and Spanish. “If there’s a significant delay or some delay where we are unable to get the information we need to file for these people, it could be they move very quickly, very far away, and legal representation becomes even harder.”
Not all detainees have the resources to find a lawyer and lawyers are overwhelmed with a surge in need, American Civil Liberties Union of Maine legal director Carol Garvan said.
“I think it’s absolutely an added barrier,” Garvan said. “Many people don’t have access to a lawyer, they may not be able to access the courts, so it is a huge barrier.”
The government has also shuffled detainees to different states and facilities, which several attorneys said makes the process harder legally and emotionally.
“It’s also a tactic that the Trump administration has been using for the last year, using these transfers to move immigrant detainees away from the community they’ve been living in, where they have family, where they have connections and support, and sometimes legal counsel, as an intentional tactic to isolate them and make it harder to win their legal cases,” attorney Melissa Brennan said.
Brennan is co-legal director for the Immigrant Legal Advocacy Project in Maine, which launched an online form for people seeking legal help for family and loved ones detained by ICE. She said ILAP has received about 70 submissions in the last week.
Immigration officers have been carrying out a targeted operation in Maine for more than a week and announced on Monday they had made more than 200 arrests.
“Our strategy, and the strategy that many immigration lawyers are picking right now, is to move really quickly to file a habeas petition to prevent that separation, to ensure that your client remains close by,” Brennan said.
U.S. District Court judges only have the authority to rule on cases if the petitioner is in their state at the time of their filing. In several cases reviewed by the Press Herald, attorneys didn’t learn their clients had been transferred to another state by ICE until after filing petitions.
In the cases of two immigrants moved from the Cumberland County Jail by ICE, federal judges in Maine determined the agency had violated court orders to keep them in the state.
“There’s just urgency with absolutely everything,” Araujo said. “When an individual is detained, you have to make an analysis of the situation in a very, very fast-paced manner, and then you have to make a quick decision as to whether that individual needs to file a habeas, if there are grounds for a habeas. Then you have to file, otherwise they will be moved out of the New England area, and that’s a problem for them.”
Attorneys also said they try to keep their detained clients in New England, where they say a federal appeals court decision four years ago has made it easier to get bond by requiring the government to prove whether an immigrant is a flight risk or threat to public safety, while other parts of the country still place the burden of proof on detainees seeking to be released.