Lack of court hearings for undocumented immigrants violates Constitution, Sacramento lawsuit charges

SacBee – by Andy Furillo

For a year and a half, Jose Garcia-Alcazar has been sitting in jails in Richmond and Elk Grove while his lawyers fight the government’s efforts to deport him to his native Mexico. For more than six months now, Garcia-Alcazar, who has three children who are U.S. citizens, has not had a hearing to determine whether he is eligible for bail while the immigration courts figure out what to do with him.  

Lawyers for the former car-wash employee in Rohnert Park call his extended stay in jail a case of indefinite detention. They also call it unconstitutional, and they say it stands in direct defiance of a 2011 appellate court ruling that guarantees incarcerated aliens a bail hearing – even if they have criminal records and made their way back to the United States after having already been deported. Garcia-Alcazar, 30, has drug convictions and once associated in Mexico with “coyotes” who smuggled people into the United States, one of his lawyers said.

Earlier this month, Garcia-Alcazar’s attorneys filed a lawsuit in federal court in Sacramento seeking class-action status to try to reinstate bail hearings for him and an untold number of other undocumented immigrants. In the lawsuit, the lawyers are challenging a memorandum issued by an immigration judge in San Francisco that says people like Garcia-Alcazar who return to the U.S. after being deported are not entitled to “redetermination” hearings that would give them a chance to make their case for bail.

While an immigration judge’s decisions are usually confined to his or her own courtroom, lawyers for Garcia-Alcazar say the one made by Anthony S. Murry on Dec. 12 has been reduced to an eight-page memo that is now being widely distributed. The plaintiff’s attorneys noted that the memo came out and that bail hearings began to be curtailed just a month after President Donald Trump was elected on a campaign that promised to build a wall across the southern border of the United States and cut off illegal immigration from Mexico.

“It is kind of weird that it started happening toward the end of the year,” said Joseph LaCome, the attorney who wrote the briefs in the case filed in Sacramento and who has filed similar lawsuits in Phoenix and San Francisco.

According to LaCome, it had been common practice in immigration courts before the election for judges to hold the bail hearings. He said such proceedings have since tailed off to “nothing.”

On Tuesday, the Trump administration released two memos outlining its enforcement strategy on illegal immigration. Along with the construction of the border wall, the plan called for hiring 10,000 new immigration control officers and 5,000 additional border security officers as well as for having local police departments use their personnel as immigration officers.

The administration’s memos also proposed a surge in “the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants.” They call for “establishment of appropriate processing and detention facilities,” within a hundred miles of the Mexican border. And they aim to achieve a sharp reduction in what the administration calls the parole of aliens while their immigration cases are pending, which has enabled thousands of them, the administration contends, to abscond from the law.

In response to Trump’s action plan, the director of the American Civil Liberties Union’s immigrants rights project, Omar Jadwat, said, “Trump does not have the last word here.” Jadwat promised legal action “if they go back to discredited detainer policies that we’ve already beat in court numerous times,” an outcome that the Garcia-Alcazar lawsuit suggests is already taking place.

Kathryn Mattingly, the spokeswoman for the U.S. Department of Justice’s Executive Office of Immigration Review, which oversees the nation’s immigration courts, said in an email Wednesday that Murry’s memo “was an independent decision by an immigration judge for one particular respondent.” She said such memorandums “are not distributed to EOIR staff as they apply only to the individual case for which they were written.”

Plaintiff’s attorney LaCome, however, said he has been told by an attorney for the Office of the Chief Counsel – the arm of the Department of Homeland Security that prosecutes cases in immigration court – that Murry’s memorandum is now being distributed around the country, making the case to deny bail hearings to immigrants from coast to coast.

“The OCC attorney told me they took it and ran with it all over the 9th Circuit,” LaCome said. “The attorney told me it also was going all over the country.”

A spokesman for U.S. Immigration and Customs Enforcement, which oversees the government’s lawyers in immigration courts, declined to comment on any pending case.

LaCome maintains in the suit, filed Feb. 9, that the Murry memorandum violates the 2011 Diouf decision by the 9th U.S. Circuit Court of Appeals that entitles aliens to bail hearings every six months, even if they have been rearrested after deportation.

The Garcia-Alcazar petition seeks “an immediate custody hearing before a federal district judge or magistrate, or an IJ (immigration judge) other than IJ Murry,” to determine whether the memorandum is lawful. It also wants to stop the U.S. Department of Justice, the Department of Homeland Security, the Executive Office of Immigration Review and U.S. Immigration and Customs Enforcement “from continuing their policy of influencing Immigration judges within this Circuit to deny Diouf bond hearings.”

Murry issued his memorandum in a case involving a woman from El Salvador who had been deported but re-entered the United States illegally. According to the memo, the unidentified woman sought asylum in the U.S. under fear of being persecuted in her home country, the only defense available to undocumented immigrants who re-enter the country after having been ordered removed.

The asylum officer who interviewed her before her case went to court found that she had a “credible fear” of persecution if she was ordered back to El Salvador. But Murry said the woman, whose identity was blacked out in the memo, “had not shown that it was clearly probable” that she’d be tortured if she was returned to El Salvador, so her removal order was reinstated. No details on the circumstances that led up to her case were available, nor was it disclosed how long she had been detained or whether she has since been deported again or is still being detained.

Murry acknowledged in his eight-page memo that the U.S. Supreme Court “has indicated” that “prolonged detention” of aliens “may run afoul of core constitutional concerns.” But Murry maintained that the 9th Circuit has not specifically addressed whether aliens are entitled to six-month hearings if they’ve already been hit with a removal order. He also said immigration judges don’t have any authority to conduct bond hearings in such instances and in fact are barred from holding them under federal regulations.

“It may fairly be asked, why not just have Immigration Judges conduct these hearings?” Murry wrote in the memorandum. “After all, they are conducting other similar hearings, they are familiar with the cases and the law, and they have the infrastructure to conduct the hearings. There is a simple and clear answer to this question: the law forbids it.”

From his seat on the immigration court bench in San Francisco, Murry has compiled one of the nation’s leading records when it comes to denying asylum requests. Out of the 514 cases he heard from fiscal years 2011 through 2016, he issued denials in 97.7 percent of them. The denial rate ties him for fourth-most among the nation’s 270 immigration judges, according to Syracuse University’s Transactional Records Access Clearinghouse.

Garcia-Alcazar, meanwhile, is being held at Rio Cosumnes Correctional Center, based on his asylum claim on fears that he would be harmed by the group smugglers with whom he used to work, if he returns to Mexico. He claims that the group had beaten him and hunted him down following some sort of unspecified disagreement, according to LaCome. Garcia-Alcazar ran away from his attackers in Mexico, crossed into the United States somewhere along the Arizona border and walked to Tucson, Ariz., before making it up to Rohnert Park prior to his apprehension, LaCome said.

The U.S. attorney’s office in Sacramento will represent the government when the case goes to a hearing, which has yet to be scheduled. The office had not been served with the complaint as of Tuesday, according to spokeswoman Lauren Horwood.
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