Court Weighs Detention of Aliens Long Ago Convicted of Crimes

Sheri Qualters, The National Law JournalJuly 28, 2014


Photo: BlackRed/iStockphoto.comA federal appeals court on Monday debated the government’s authority to detain aliens years after their release from criminal custody without giving them a bond hearing.

The U.S. Court of Appeals for the First Circuit weighed the issue in back-to-back oral arguments in Castaneda v. Souza and Gordon v. Holder. At stake was a section of the U.S. Code that allows the federal government to take a criminal alien into custody “when the alien is released” on parole, supervised release or probation.


Gregory Romanovsky of Boston- and New York-based Romanovsky Law, argued that the statute was intended to give immigration authorities a way to detain aliens who might be a flight risk or dangerous.


“The underlying purpose of the statute does not allow the government to just pluck individuals out of their community five years later,” he said.


The government sought to overturn two District of Massachusetts rulings requiring bond hearings for aliens detained by U.S. Immigration and Customs Enforcement officers long following their release from criminal custody.


The noncitizens’ lawyers argued that such delays raise serious constitutional concerns. The government relied on 2012 and 2013 rulings by the Third and Fourth circuits holding that immigration authorities may detain criminal aliens well after their release.


The debate touched on a more general ruling about detained immigrants from the Ninth Circuit. In 2013, that court in Rodriguez v. Robbins court called for an individualized bond hearing after sixth months.

In June 2013, U.S. District Judge William Young, who sits in Boston, ordered an immigration judge to give Leiticia Castaneda an individualized bond hearing that same month. Castaneda, a Brazilian citizen, served probation for cocaine possession from 2008 to 2010. Customs officials took her into custody in March 2013.

In October, U.S. Senior District Judge Michael Ponsor, who sits in Springfield, Mass., ordered a bond hearing for Clayton Richard Gordon within 30 days. Gordon, a Jamaican citizen, was convicted of cocaine possession and given a seven-year suspended sentence plus a three-year term of probation in 2009. Immigration officials took Gordon into custody in June 2013.


Federal Circuit Judge Timothy Dyk sat by designation Monday with First Circuit judges O. Rogeriee Thompson and Juan Torruella.


Elianis Pérez, a senior litigation counsel in the Justice Department’s Office of Immigration Litigation, argued that the Supreme Court’s 2003 ruling inDemore v. Kim upheld the constitutionality of the statutory language at issue.


“The Supreme Court indicated in that case, in Demore, that it was constitutional to hold criminal aliens without bond until the end of removal proceedings,” Pérez said.


But Justice Anthony Kennedy wrote in his concurrence that such detentions could become so lengthy that they’re unreasonable, Dyk said.


Pérez replied that it “doesn't become unreasonable at the sixth-month mark automatically.”


Romanovsky represented Castaneda. Gordon was represented by Matthew Segal, legal Director of the American Civil Liberties Union Foundation of Massachusetts. “There’s no serious dispute that ‘when’ has a time limit in this case, and it’s a time limit that’s pretty short,” he said.


Sheri Qualters can be contacted at
squalters@alm.com.


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