On August 8, 2013, noncitizens being held in mandatory detention filed a lawsuit in the U.S. District Court for the District of Massachusetts against the DOJ, DHS, and various county sheriffs in Massachusetts. Plaintiffs argue that their detention in deportation proceedings without any chance for release on bail when they were released from criminal custody months or years ago violates the Immigration Nationality Act (8 U.S.C. 1226). Plaintiffs, represented by attorneys from the ACLU and the Lutheran Social Services, are seeking class certification and injunctive and declaratory relief. Plaintiffs also brought a petition for writ of habeas corpus seeking individualized bond hearings to challenge their immigration detentions.

Plaintiffs are lawful permanent residents who were convicted of crimes and were released from criminal custody long before they were detained by Immigrations and Customs Enforcement ("ICE"). When detained by ICE, they were held in mandatory detention. Plaintiffs allege that ICE has misapplied the mandatory detention statute (8 USC 1226(c)) to individuals like them who have been living in the United States for years since their release without incident. That statute requires the government to detain certain non-citizens "when the alien is released." Plaintiffs argue that the statute only allows mandatory detention for people who are convicted of certain crimes and who are taken into immigration custody at the time they are released from the criminal justice system for such a crime.

On October 23, 2013, following proceedings on defendants' motion to dismiss and plaintiff's motion for a preliminary injunction, the Court (Judge Michael A. Ponsor) ordered the defendants to grant plaintiff an individualized bond hearing within thirty days while the court prepares its memorandum opinion. The Court also denied defendants' motion to dismiss and plaintiff's motion for a preliminary injunction. In its Order, the Court accepted 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 is proper for the Court to retain the case to resolve the class-wide allegations. Gordon v. Napolitano, C.A. No. 13-cv-30146-MAP, 2013 WL 5774843 (D. Mass. Oct. 23, 2013). On December 16, the defendants filed a notice of appeal as to this Order. The District Court's memorandum opinion was subsequently published on December 31. Gordon v. Johnson, 991 F. Supp. 2d 258 (D. Mass. 2013).

On December 19, 2013, following supplemental briefing, the District Court held a hearing on plaintiffs' motion for class certification. The Court took the matter under advisement. The Court also granted 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 filed a notice of appeal as to this Order.

Over the next few months, several motions were filed: a renewed motion for the certification of the plaintiff class; plaintiffs' motion for summary judgment; and 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 plaintiffs' motion for class certification, granted the new petitioner an individualized bond hearing, and denied defendants' motion to dismiss. Gordon v. Johnson, 300 F.R.D. 28 (D. Mass. 2014). On May 23, the defendants filed a notice of appeal as to this Order.

On May 21, 2014, the District Court (Judge Ponsor) granted plaintiffs' motion for summary judgment, and scheduled a hearing to review 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 filed a notice of appeal as to this Order.

Defendants' first appeal, from the October 23 Order, was consolidated with a case arising from the United States District Court for the District of Massachusetts, Eastern Division before Judge William G. Young. Both cases involved the same legal issue (namely, 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 United States Court of Appeals for the First Circuit affirmed the District Court's Order, holding that 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).

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 has lifted the stay and set a briefing schedule on the consolidated appeal.

Jennifer Bronson - 11/14/2013
Dan Whitman - 11/03/2014


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