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Earlier this month, Benach Collopy authored a brief on behalf of the American Immigration Lawyers Association in the case of Michael Sylvain v. Attorney General before the U.S. Court of Appeals for the Third Circuit.  In Sylvain, the court must decide whether the Immigration & Nationality Act (INA) requires the detention of individuals convicted of certain offenses regardless of how long it has been since they were released from criminal custody. On behalf of AILA, Benach Collopy argued to the court that people released from custody prior to Immigration & Customs Enforcement’s (ICE) assumption of custody are entitled to a bond hearing where an immigration judge can make a determination as to whether they are flight risks or dangers to the community.  ICE argues that the INA gives immigration judges no authority to consider the release such individuals and that they must be detained for the duration of their removal proceedings regardless of how long it has been since they were convicted of an offense.

In Sylvain, the government defends a decision by the Board of Immigration Appeals (BIA) in Matter of Rojas.  In Rojas, the BIA decided that the mandatory detention provisions of the INA require detention without possibility of release on bond regardless of when that person was released from criminal custody.  However, the INA mandatory detention provision states that certain individuals shall be taken into custody “when the alien is released.”  The BIA decided in Rojas that that language did not limit ICE to apply mandatory detention to individuals regardless of when they were released.  Under Rojas, an individual would be subject to detention without any sort of review by a judge even if they had been released from prison a decade earlier.  As immigration judges around the country cited Rojas and explained that their hands were tied, advocates went to U.S. District Courts around the country and sought habeas corpus review.  Almost uniformly, the federal courts told the immigration service that Rojas was wrong and that the detained individual was entitled to a bond hearing.  The immigrant was then released.   ICE rarely appealed these decisions to the courts of appeals.

However, they did so in Hosh v. Lucero.  In that case, a district court judge found that Rojas was wrongly decided and ordered an immigration judge to hold a bond hearing.  However, this time, the government, sensing a possibly friendly court in the Court of Appeals for the 4th Circuit, a court known for giving the government wide berth to operate, appealed the judge’s decision.  The government’s gamble paid off and the Court of Appeals for the Fourth Circuit reversed the district court judge and deferred to the BIA’s decision in Rojas, foreclosing habeas relief in the states of the 4th Circuit (Maryland, Virginia, North Carolina, South Carolina and West Virginia).  Although district courts in the Fourth Circuit must follow Hosh, district courts outside of the Fourth Circuit have not found Hosh terribly persuasive.

Now this issue is before the Third Circuit Court of Appeals, which encompasses New Jersey, Pennsylvania and Delaware, in Sylvain.  A decision rejecting Rojas would create a split between the Third and the Fourth Circuits, possibly leading the way to Supreme Court review.  Oral argument is coming next month and we will report from the argument and when a decision comes down.