A 53-year-old man is sitting in a jail cell, where he has been detained for eight months. Prior to his incarceration, he worked hard as a union carpenter. He has two daughters. He has little hope for bail. He sits, he waits. He is a legal U.S. resident, the parent of two U.S. citizens. His green card does not even protect him from mandatory detention, according to recent federal litigation challenging mandatory detention without a hearing in immigration cases.
The man came to the United States from Jamaica roughly 30 years ago. He is not an undocumented immigrant, he has gone through the process to obtain his green card-he has worked legally as he has been raising his U.S. citizen children. So why is he behind bars-for such an extended period of time? In 1995, he was busted for possession of a small amount of marijuana. Seventeen years later a knock on the door landed him in jail.
U.S. Immigrations and Customs Enforcement has had a policy of prosecutorial discretion in place, a subject discussed previously on this blog. Immigration agents are directed to consider an immigrant’s circumstances-such as how long an immigrant has been in the country, the person’s ties to the community, whether an immigrant’s spouse or children are U.S. citizens-when considering whether to pursue deportation and removal proceedings.
Still, a legal U.S. resident, with ties to the community, the father of two U.S. citizens sits in jail over a 17-year-old brush with the law. He is an example cited in a recent class action lawsuit challenging mandatory detention. The lawsuit says that ICE misinforms detainees on immigration holds of their right to challenge mandatory detention.
The lawsuit reportedly seeks to have the court system change the procedures to allow immigrants a fair opportunity to challenge detention if they can show that they are not being detained for a deportable offense, and where they have a legitimate argument that they pose no danger or flight risk. The class action lawsuit only pertains to specified detainees in one state on the East Coast, but it is seen as a test case for future litigation, and better rights for potential detainees.
- The Star-Ledger, “ACLU lawsuit fights mandatory jail time for immigration detainees,” James Queally, Nov. 15, 2012
- Wall Street Journal, “ACLU-NJ files suit over immigration detention,” Associated Press, Nov. 15, 2012
- Our firm provides a full range of services in the area of immigration law, including federal litigation. For more information about the firm, please visit the Florida removal deportation defense page.