Immigrant Detained 8 Months for Turnstile Jumping Is Entitled to Bond Hearing By Michael Joseph on June 01, 2018

The Southern District of New York just issued a ground breaking decision for a Haitan immigrent, which will likely affect the right of other immigrants held without bal when facining criminal charges in New York City, Westchester and Rockland counties. “The public interest is best served by ensuring the constitutional rights of persons within the United States are upheld,” the U.S. District Judge Alison Nathan of the Southern District of New York Nathan said. Judge Nathan found that the prolonged detention of Augustin Sajous, who came to the United States from Haiti in 1972 when he was 14 years old, without a bond hearing violates his due process rights. The judge said the bond hearing must be held within two weeks.

The judge ruled that the Haitian immigrant who has been held in immigration detention for eight months following two convictions for bending MetroCards to access the New York City subway should be subject to a bond hearing to weigh his release.  In her 30-page ruling, Nathan said the burden of proof for keeping Sajous, a legal permanent resident, locked up in a U.S. Immigration and Customs Enforcement facility in New Jersey is on the government. She said he must be released unless it can be proved that he is a flight risk or a danger to the community.

Nathan also granted Sajous’ motion for a preliminary injunction, finding that Sajous, who is 60 years old and suffers from schizophrenia, has succeeded on the merits in the case and that his continued detention runs afoul of his due process rights.  The Court declined to recognize a bright line rule of a six-month requirement to hold bond hearings for detained immigrants, which the U.S. Court of Appeals for the Second Circuit established in a 2015 ruling.

Our New York  Deportation attorneys know that Immigrant detention is governed by 8 U.S.C. 1226, which allows immigration judges to hold bond hearings for detainee, but requires mandatory deportation for detainees who have committed “crimes of moral turpitude,” as well as drug or firearms offenses, aggravated felonies or terrorism. ICE coften ontends minor and petty criminal convictions count as crimes of moral turpitude and have been making immigration arrests outside of New York City courthouses whern immigrants appear to face criminal charges.In February, the U.S. Supreme Court, ruling on a case sent up from the U.S. Court of Appeals for the Ninth Circuit, found that federal immigration statutes do not guarantee bond hearings for ICE detainees. The Ninth Circuit’s interpretation of 8 U.S.C. 1226 in Jennings v. Rodriguez, was identical to the Second Circuit’s holding in Lora, thus SCOTUS vacated the ruling in Lora and remanded it to the appeal court for further proceedings.

In March, New York Immigration Court Judge Thomas Mulligan, who presides over Sajous’ immigration case, declined to hold a bond hearing for Sajous, citing the vacatur of the Second Circuit’s ruling in Lora.Turning to Lora, Nathan said the Second Circuit used a “constitutional avoidance” approach — the appeals court found that the six-month requirement was necessary to avoid violations of detainees’ due process rights, Nathan reasoned, not that the Constitution mandates that a detainee get a bond hearing within six months.

Our New York immigration attorneys continue to fight these fights at the ground level to protect the right of immigrants and prevent their deportation.

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The Law Office of Michael H. Joseph, PLLC

Law Office of Michael H. Joseph, PLLC

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