Three more people detained during the June immigration raid on Omaha’s Glenn Valley Foods meatpacking plant will be released from ICE custody after a federal judge found their detention unlawful.
Sabina Carmona-Lorenzo, Diego Palma Perez and Ernesto Cortes Fernandez are among a growing group of people to challenge their continued detention by ICE despite an immigration judge granting their release on bond. They each have children who are U.S. citizens and have lived in the country for more than 20 years.
At a Wednesday hearing, U.S. District Court Senior Judge Joseph Bataillon ordered their immediate release from custody. The judge had previously ordered the release of three women who were detained at Glenn Valley and held in ICE custody under nearly identical circumstances.
“I don’t think there’s a substantial difference between my previous rulings, so I’m going to order that they are all released,” Bataillon said.
The true number of people who remain in ICE custody in Nebraska after attempting to post bond is unknown. At an earlier hearing, attorneys for the government said there were at least 16 people detained at the Lincoln County Jail under similar circumstances.
Jamie Arango, an immigration attorney who represented Palma Perez and Cortes Fernandez, said that’s far from the full picture.
“There has to be hundreds,” she said. “As a solo practitioner, I’m doing four or five bond hearings a week and getting granted bonds. And there’s 100 more attorneys just like me.”
Since Aug. 25, five more people have filed lawsuits challenging their continued detention by ICE. Most of the petitioners were detained during the Glenn Valley raid and held at the Lincoln County Jail, though one was taken into custody during a traffic stop and is detained at the Dakota County Jail.
At the heart of the case are two provisions within the Immigration and Nationality Act: Section 236, which has long been understood to apply to undocumented immigrants who are already present in the U.S., and Section 235, which was understood to apply to “arriving aliens” encountered at the border or shortly after entry. People detained under Section 235 are typically subject to mandatory detention, while those detained under 236 are entitled to a hearing in front of an immigration judge.
But on July 8, interim guidance issued by ICE said the agency had “revised its legal position on detention and release authorities,” and categorized every undocumented immigrant as subject to mandatory detention under Section 235.
Grant Friedman, an ACLU of Nebraska attorney who represented Carmona-Lorenzo, said his client and others in her situation were initially taken into ICE custody under the provisions of Section 236. But when they appeared for hearings in front of an immigration judge, attorneys for the government instead argued that they were detained under the “arriving alien” provision and thus subject to mandatory detention.
In the cases considered at Wednesday’s hearing, that argument was rejected by an immigration judge and bond was set. Carmona-Lorenzo and Palma Perez had their bonds set at $9,000; Cortes Fernandez’s bond was set at $10,000.
But when Carmona-Lorenzo and Cortes Fernandez went to post bond in person or via ICE’s online portal, the payment was not accepted. In Palma Perez’s case, his bond was accepted but he was not released from custody.
Their attempts to pay bond failed because ICE had filed its intent to appeal the immigration judge’s decision to the Board of Immigration Appeals. That appeal results in an “automatic stay,” which prevents a person’s release as the appeal is considered.
In his written opinion ordering Carmona-Lorenzo’s release, Bataillon said the automatic stay provision is a violation of due process rights. He also found that the Department of Homeland Security was acting beyond its delegated authority by issuing an automatic stay.
“Despite a neutral decision-maker finding a bond was warranted, the automatic stay provision allowed (the Department of Homeland Security), the party who lost its bond argument, to unilaterally deprive petitioner of her liberty,” Bataillon wrote.
Because a petition for a writ of habeas corpus – the legal name for a lawsuit challenging unlawful detention – is individualized, Bataillion’s finding that the automatic stay provision is unconstitutional only applies to the named petitioners.
The national arm of the ACLU filed a class-action lawsuit in July on behalf of people detained under similar circumstances to the Nebraska detainees. But the class has not yet been certified, and because of the large number of people impacted, Arango said it could take a long while.
As that process continues, Arango encouraged people detained under an automatic stay to challenge their detention in federal court.
“Don’t accept that there’s no way to be released from jail just because they’re not allowing you to post bond,” she said. “Find someone that can file a writ of habeas corpus in federal court and get out.”
The post Nebraska Judge says three people in ICE detention were wrongfully detained after bond determination, more remain imprisoned appeared first on The Reader.
