Held without Bond: An Update on Immigration Detention in Washington state

In March, more than 700 detainees at the immigration detention center in Tacoma went on a hunger strike to protest the government’s detention policies. According to their advocates and attorneys, the strikers experienced a variety of reprisals, including forced feeding and solitary confinement. These activities were not limited to the Northwest Detention Center in Tacoma—similar hunger strikes occurred recently at immigration detention centers in Texas. Given this sequence of events, maybe it’s time to ask ourselves: Has the government’s practice of locking up immigrants gone too far?

Recent court cases suggest that federal judges in Washington state believe that the answer is yes. In 2012, the United States District Court for the Western District of Washington heard a petition for a writ of habeas corpus filed pro se by a detainee at the Northwest Detention Center. In that case, Castillo v. Ice Field Office Director, 907 F.Supp.2d 1235 (2012), the court addressed the issue of mandatory detention of criminal detainees. Specifically, the court held that U.S. Immigration and Customs Enforcement (ICE) could not hold a detainee without bond if the detainee was not transferred directly from criminal custody to immigration custody. Under the policy of ICE at the time of the case, a detainee could be arrested by immigration and held without bond even if he had been released from criminal custody years ago.

The Immigration Courts React

Following this decision, both ICE and the immigration judges at the Northwest Detention Center continued to flout the reasoning of Castillo, taking the position that a detainee could be held without bond even if he or she was not transferred directly from criminal custody. Castillo, the immigration judges reasoned, did not create binding precedent because it was not a decision issued by the Board of Immigration Appeals or the 9th Circuit Court of Appeals, the two courts that provide direct judicial review of immigration court decisions.

The ACLU Class Action

Enter the ACLU and Northwest Immigrant Rights Project. In 2013, these organizations partnered with the law firm of Gibbs Houston Pauw to bring a class action, Khoury v. Asher, No. C13-1367-RAJ. (W.D. Washington 2014), on behalf of detainees who were being held without bond under the policy of ICE and the immigration court at the Northwest Detention Center. One of the named plaintiffs, Alvin Rodriguez Moya, had been convicted in 2010 for third degree Misconduct Involving a Controlled Substance. He received a sentence of three years with two years suspended and was released almost immediately from criminal custody. Despite this fact, Mr. Rodriguez was arrested in 2013 by immigration and held without bond because of his previous criminal conviction.

Through the lawsuit, the ACLU and its partnering organizations obtained a declaratory judgment from the court in March 2014 prohibiting ICE and the immigration court from holding detainees without a bond hearing if they have not been transferred directly from criminal custody. This is an important step forward for detainees who have been held without bond under the government’s draconian mandatory detention policies.

More to be Done

Despite this important victory, Khoury v. Asher prohibits mandatory detention for only one class of detainees—those who were arrested by immigration after being released from criminal custody. Other classes of detainees, including those who are held under the government’s “expedited removal proceedings,” are still subject to mandatory detention. Given the federal courts’ reluctance to rubber stamp the government’s detention policies, will continued mandatory detention in situations like these stand? That is one of many questions that will likely be brought forth in the future by organizations like the ACLU and the Northwest Immigrant Rights Project.