An immigrant who filed a petition for habeas corpus after being held in detention by Immigration and Customs Enforcement ("ICE") and the Department of Homeland Security ("DHS") in the wake of his return to the US following an unlawful deportation was granted a temporary restraining order and a preliminary injunction mandating that he be given a bond hearing within 14 days or that he be released.
The victory was secured by a pro bono team including senior consulting partner Linda Dakin-Grimm and Litigation associates James Whooley and Chase Beauclair, as well as Mary Tanagho Ross and Sara Van Hofwegan from Public Counsel and Michigan attorney Stephanie Blumenau. The verdict will grant the client, Mr. Diaz, a clearer path to permanent residency in the United States.
Mr. Diaz, a Guatemalan native, was put under his cousin's guardianship at age 20 after a California court ruled that he should not return to Guatemala because of familial abuse. The court's "Special Immigrant Juvenile" findings were submitted to United States Citizenship and Immigration Services ("USCIS") in support of Mr. Diaz's petition for Special Immigrant Juvenile ("SIJ") status. USCIS ignored the submission.
At the time of Mr. Diaz's petition, USCIS announced that – contrary to express US law, it would deny SIJ petitions for children whose SIJ findings were made after the child turned 18. US law makes SIJ status available until age 21.
Led by Ms. Tanagho Ross of Public Counsel, a group of SIJ applicants in California filed a class action lawsuit, J.L. v. Cuccinelli, 18-CV-4914 (N.D. Cal.) ("J.L."), that challenged USCIS' unlawful policy. A federal court hearing the lawsuit granted a preliminary injunction that prevented DHS and USCIS from deporting Special Immigrant Juvenile Status petitioners (like Mr. Diaz), whose applications had been ignored or denied under the new policy.
Even though Mr. Diaz was a member of the protected class of petitioners, ICE and DHS failed to inform Mr. Diaz of his protected status. Mr. Diaz was eventually deported in violation of the J.L. injunction.
Upon discovering that ICE and DHS had secretly and illegally deported Mr. Diaz and several other J.L. class members, expressly violating the Court's order, the California federal judge held them in contempt and ordered the government to return Mr. Diaz and the others to the United States. Mr. Diaz's re-entry was authorized, but ICE and DHS took him to a Michigan county jail, where he remained for months. Upon arrival at the jail, he learned that he was granted SIJ status more than three years after his petition's submittal.
DHS and ICE then notified counsel of their intention to deport Mr. Diaz again. With the help of the Milbank pro bono team and Public Counsel, Mr. Diaz filed an emergency writ of habeas corpus and a motion for a temporary restraining order and preliminary injunction in federal court in Michigan, which would stay his removal and grant him release from detention. The federal court immediately granted the temporary restraining order, preventing DHS and ICE from again deporting Mr. Diaz. But DHS and ICE refused to release Mr. Diaz from the county jail, and remained intent on deporting him. They contended that they had the power to do so under the same "removal order" that they had already executed when they secretly and wrongfully deported Mr. Diaz the first time.
The Milbank team and Public Counsel argued that the Michigan federal court had jurisdiction to order Mr. Diaz released from detention, as the United States Code provides district courts with jurisdiction over petitions for habeas corpus. DHS and ICE strenuously disagreed. The Michigan court, citing the Supreme Court's recent decision in Department of Homeland Security v. Thuraissigiam where the Court stated that the traditional function of habeas corpus is to secure release from unlawful detention, agreed with Mr. Diaz's team and ruled that the writ of habeas corpus would be granted if a bond or custody redetermination hearing before an Immigration Judge was not provided to Mr. Diaz within 14 days of the court's order.
The Milbank team further argued that there was no statutory authority supporting Mr. Diaz's detention and that he was being detained indefinitely and illegally. The court agreed with the Milbank team that the order of removal that ICE and DHS used to deport Mr. Diaz illegally the first time was exhausted, and could not be automatically reinstated when Mr. Diaz was brought back into the United States legally, pursuant to the court order in J.L.
The court further found that there was no statutory basis to continue Mr. Diaz's detention, and that he "thus floats in a detention 'limbo.' [...] Such prolonged detention by the state on highly questionable legal grounds is precisely what due process and the writ of habeas corpus are meant to prevent."
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