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Federal Court Requires Immigration Courts to Continue to Provide Bond Hearings Despite Matter of M‑S‑

In Padilla v. ICE, a district court judge issued a decision that requires immigration courts to continue to provide bond hearings to individuals fleeing persecution who enter the United States without inspection, are placed in expedited removal proceedings, and pass their credible fear interviews. The decision is set to take effect on July 16, 2019.

District Court Orders Timely Bond Hearings for Detained Asylum Seekers

In Padilla v. ICE, the court issued a preliminary injunction requiring the government to provide certain detained asylum seekers with a bond hearing within seven days of a bond hearing request and to release those individuals whose detention time exceeds that limit.

Court Affirms Preliminary Injunction Requiring IJs to Consider a Detainee’s Financial Ability to Pay When Setting a Bond

The Ninth Circuit affirmed the district court’s order granting a preliminary injunction in favor of the plaintiffs, a class of noncitizens in removal proceedings who are detained under INA §236(a) in the Central District of California and are unable to afford the amount of bond set by immigration officials. Finding that the plaintiffs were likely to succeed on the merits of their due process claim, the court held that the district court did not abuse its discretion in granting a preliminary injunction requiring immigration officials when making bond determinations to, among other things, consider (1) financial ability to obtain bond and (2) alternative conditions of release.

ICE Not Following Its Own Rules on Releasing Pregnant People

There are indications that ICE has revoked a policy issued in August 2016 recommending that pregnant people “generally not be detained” and is currently detaining pregnant people “at the rate of one per day.” Cases of pregnant women being detained by ICE have been detailed in an administrative complaint filed with DHS on behalf of these women.

Release on Bond for Reinstated Removal Order

The Second Circuit affirmed the district court, finding that a reinstated removal order is not final during the pendency of withholding-only proceedings, and thus, the detention of individuals with reinstated orders of removal and in withholding-only proceedings is governed by INA §236(a), which permits release on bond.

Bond Denied

  1. In a precedent decision issued today, the BIA held that, in determining whether a noncitizen presents a danger to the community at large and thus should not be released on bond pending removal proceedings, an IJ should consider both direct and circumstantial evidence of dangerousness, including whether the facts and circumstances present national security considerations. Accordingly, the BIA affirmed the IJ’s denial of the respondent’s request for release on bond, finding that he failed to show that, based on the totality of the facts and circumstances presented, he did not present a danger to the community pursuant to INA §236(a).

Bivens Claim denied

In a decision issued yesterday, the Eleventh Circuit affirmed the district court’s dismissal of the plaintiff’s Bivens action against various government officials, holding that no Bivensremedy is available to a plaintiff who claims that immigration officials unconstitutionally prolonged his detention. The plaintiff had been ordered removed, and although ICE does not effectuate removals to Cuba, he remained in ICE custody for an amount of time greatly exceeding the 90-day statutory period for removal, from November 25, 2008, until October 21, 2009.

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