On August 8, 2013, several noncitizens being held in mandatory detention filed a lawsuit in the U.S. District Court for the District of Massachusetts against the U.S. Department of Justice (DOJ), U.S. Department of Homeland Security (DHS), and various county sheriffs in Massachusetts. The plaintiffs argued that their detention in deportation proceedings -- without any chance for release on bail when they were released from criminal custody months or years before -- violated the Immigration Nationality Act (INA) (8 U.S.C. § 1226). The plaintiffs, represented by the ACLU and Lutheran Social Services, sought class certification and injunctive and declaratory relief. They also brought a petition for writ of habeas corpus seeking individualized bond hearings to challenge their immigration detentions.

The plaintiffs were lawful permanent residents (LPRs) who were convicted of crimes and were released from criminal custody long before they were detained by Immigrations and Customs Enforcement (ICE), a component of DHS. When detained by ICE, they were held in mandatory detention. The plaintiffs alleged that ICE misapplied the mandatory detention statute (8 U.S.C. § 1226(c)) to individuals like them, who had been living in the United States for years after their release without incident. That statute required the government to detain certain noncitizens "when the alien is released." The plaintiffs argued that the statute only allowed mandatory detention for people who were convicted of certain crimes and who were taken into immigration custody at the time they were released from the criminal justice system for such a crime.

On October 23, 2013, following proceedings on the defendants' motion to dismiss and the plaintiffs' motion for a preliminary injunction, the Court (Judge Michael A. Ponsor) ordered the defendants to grant the plaintiffs individualized bond hearings within thirty days while the Court prepared its memorandum opinion. The Court also denied the defendants' motion to dismiss and the plaintiff's motion for a preliminary injunction. In its order, the Court accepted the plaintiffs' interpretation of the INA provision at issue. The Court also directed the parties to file briefs within thirty days on the question of whether it was proper for the Court to retain the case to resolve the class-wide allegations. Gordon v. Johnson, 991 F. Supp. 2d 258 (D. Mass. 2013). On December 16, the defendants appealed the order.

On December 19, 2013, the District Court held a hearing on the plaintiffs' motion for class certification. The Court granted the plaintiffs leave to file an amended complaint, adding three further petitioners seeking individualized bond hearings. On February 7, 2014, the Court ordered these petitioners to be provided with individualized bond hearings. On April 7, the defendants appealed this order.

Over the next few months, several motions were filed: a renewed motion for the certification of the plaintiff class; the plaintiffs' motion for summary judgment; and the defendants' renewed motion to dismiss. The plaintiffs also filed a second amended complaint, adding an additional petitioner seeking an individualized bond hearing. On March 27, 2014, the District Court (Judge Ponsor) granted the plaintiffs' motion for class certification, granted the new petitioner an individualized bond hearing, and denied the defendants' motion to dismiss. Gordon v. Johnson, 300 F.R.D. 28 (D. Mass. 2014). On May 23, the defendants appealed this order.

On May 21, 2014, the District Court (Judge Ponsor) granted the plaintiffs' motion for summary judgment, and scheduled a hearing to review the defendants' compliance with the order, and to discuss entry of final judgment. Gordon v. Johnson, 300 F.R.D. 31 (D. Mass. 2014). On July 2, the defendants appealed this order.

The defendants' first appeal, from the October 23 order, was consolidated with Castañeda v. Souza, another case in the same Court before Judge William G. Young. Both cases involved the same legal issue: whether mandatory immigration detention applies only to noncitizens being detained by immigration authorities "when . . . released" from some predicate criminal custody.

On October 6, 2014, the U.S. Court of Appeals for the First Circuit affirmed the District Court's order, holding that the plaintiffs were not detained within a "reasonable time" after being released from state criminal custody, and that ICE's failure to detain them within a "reasonable time" mandated individualized bond hearings for the plaintiffs. Castañeda v. Souza, 769 F.3d 32 (1st Cir. Oct. 6, 2014).

The defendants' remaining three appeals were all consolidated in the First Circuit, and were held in abeyance until the Court of Appeals adjudicated the first appeal. With the Court's decision in Castañeda, the Court of Appeals lifted the stay and set a briefing schedule on the consolidated appeal.

However, the defendants requested an en banc rehearing of Castañeda, which the First Circuit granted. After oral argument on April 7, 2015, the First Circuit's en banc panel issued a December 23, 2015 opinion and order, affirming the District Court's judgment by an equally divided vote. The First Circuit then granted the parties' request to dismiss several pending appeals.

However, meanwhile, the First Circuit had been considering the defendants' appeal of the District Court's May 21, 2014 order granting summary judgment to the plaintiffs in the Gordon case. On November 21, 2016, the First Circuit (Case No. 14-01729) vacated the District Court's grant of summary judgment, declaratory judgment, and injunctive relief, as inconsistent with Castañeda, and asked the District Court to determine how to proceed on remand in light of Castañeda. The plaintiffs were scheduled to petition the First Circuit for en banc rehearing of this opinion by February 21, 2018, though this petition has not yet appeared on the docket.

Back in the District Court, after discussing next steps, the parties proceeded with the case. The parties completed discovery in December 2017 and their most recent status conference was February 13, 2018.

On Mar. 22, the defendants moved to stay proceedings pending the U.S. Supreme Court's decision in Nielsen v. Preap; plaintiffs opposed this motion on Apr. 5. Judge Ponsor granted defendants' motion on Apr. 18.

This case is ongoing.

Jennifer Bronson - 11/14/2013
Dan Whitman - 11/03/2014
Ava Morgenstern - 04/24/2018


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