Judge Vilardo rebukes ICE's 'about-face' on mandatory detention policy

Until a dramatic policy shift last July, immigrants detained after entering and living the United States without authorization could request a bond hearing before an immigration judge. But the administration now interprets immigration law as not just allowing detention – but requiring it.

Vilardo disagreed with that stance in a case involving Jorge Alvarez Ortiz, a Guatemalan man who entered the United States without permission more than 20 years ago.

“Nothing has changed – factually or legally – to warrant that ... change in interpretation, which would require the detention of millions of immigrants currently residing in the United States,” Vilardo said in his written decision.

U.S. Immigration and Customs Enforcement took Alvarez Ortiz into custody Oct. 1, detaining him at the Buffalo Federal Detention Center in Batavia. His attorney Matthew K. Borowski filed a habeas corpus petition alleging he was being held unlawfully and also sought a temporary restraining order to keep ICE from transferring him to a detention facility outside Western New York and deporting him during the legal proceedings. Vilardo granted the temporary restraining order.

Different circumstances of immigrants’ undocumented entries into the United States can trigger different sections of federal law with different implications. Federal law also limits the jurisdiction and powers of U.S. district judges in immigration cases.

Historically, immigration officials have pointed to and relied on different sections of federal law that distinguish between those apprehended at the border and those who have lived in the United States for years and even decades.

“But like much immigration law of late, that long-recognized distinction is no more – at least as far as the executive branch is concerned,” said Vilardo, who in recent months has raised concerns about the government’s immigration crackdown.

Despite case law and decades of practice, the Department of Homeland Security now takes the position that anyone who is in the country without having been legally admitted – regardless of how long they have been here – falls under a section of federal law that mandates detention, Vilardo noted in his ruling.

“In other words, DHS now says that those who have entered the United States and those who have never entered are one and the same,” he said. “And this about-face has been approved by the Board of Immigration Appeals.

In September, a decision from a BIA judge affirmed the July order from ICE’s acting director to ICE officers that immigrants who entered the country without permission, regardless of when, should be detained during deportation proceedings.

The BIA, part of the executive branch, operates within the U.S. Department of Justice, separate from U.S. district courts.

Vilardo said ICE’s new interpretation runs “contrary to the agency’s own regulations, its published guidance, the decisions of its immigration judges – until very recently – decades of practice, the Supreme Court’s gloss on the statutory scheme, and the overall logic of our immigration system.”

In court filings and during a court hearing ahead of Vilardo’s ruling, Assistant U.S. Attorney Adam Khalil pressed for the petition to be dismissed, arguing that the judge lacked jurisdiction and that Alvarez Ortiz was not entitled to a temporary restraining order.

“It does not matter whether an alien was apprehended 25 yards into U.S. territory or 25 miles,” Khalil said in a court filing. “Nor does it matter if he was here unlawfully and evaded detection for 25 minutes or 25 years. When an alien has never been admitted to the country by immigration officers, his detention is no different from an alien stopped at the border.”

Otherwise, people would have an incentive to illegally enter the country, gaining more rights that those who present themselves at the border to immigration authorities and want to follow the lawful process, Khalil said.

As of Tuesday, 176 district court decisions from around the country rejected the government’s contention that detention is mandatory, Borowski said in a court filing. Only two of the 10 unfavorable decisions were based on the merits of the legal arguments, with the others citing lack of jurisdiction or that not all administrative remedies had been pursued, Borowski said.

Vilardo noted that numerous federal court rulings — including from U.S. Judge Meredith A. Vacca in Rochester – have disagreed with the BIA’s reasoning and granted habeas petitions or motions for preliminary relief for detained noncitizens under the section that ICE says requires detention.

Vilardo said he “carefully and independently” analyzed the federal statutes at issue and joined “the majority of courts” in finding that section of law requiring detention does not apply to Alvarez Ortiz and those like him who are in the country but have not been legally admitted and seek to stay.

Vilardo did not order the release of Alvarez Ortiz, but set in motion a process that could lead to his release.

The judge ordered an individualized bond hearing for Alvarez Ortiz before an immigration judge within one week, during which the government will bear the burden to show by clear and convincing evidence that he is a danger to the community or a flight risk.

At the bond hearing, the immigration judge must consider non-bond alternatives to detention or, if setting a bond, Alvarez Ortiz’s ability to pay.

If ICE doesn’t provide such a hearing, it must immediately release Alvarez Ortiz, Vilardo said.

The judge said ICE must file a status report by Nov. 12 confirming he has either been granted a bond hearing or released.