There have been a number of disturbing reports that the Bush Administration is using the USA Patriot Act in cases that aren't related to terrorism. Now the New Jersey Law Journal reports that the government is using another anti-terrorism rule in non-terrorism cases, this time targeting sex offenders.
The rule in question, 8 C.F.R. 3.19(i)(2), allows the Bureau of Immigration and Customs Enforcement to automatically stay any order by an immigration judge that would release a detainee on bond. Instead, the detainee must remain in jail until tried in immigration court. Ordinarily, the decision whether to release a detainee on bond or hold him for trial is made by the immigration judge after considering whether the detainee is a flight risk or poses a danger to the community.
The automatic stay rule was enacted on October 26, 2001, to enable the Attorney General to designate that immigrants suspected of ties to terrorism could be held indefinitely, apparently so that they can be interrogated. Similar treatment of the September 11 detainees has been roundly criticized by civil libertarians.
But John Ashcroft is now using the automatic stay rule not just against suspected terrorists, but also against sex offenders. Welcome to Operation Predator. As part of Operation Predator, BICE is checking the "automatic stay" box for any immigrant who has been convicted of a sex offense, whether minor or major, even if the immigrant has already served his time and stayed out of the trouble with the law ever since.
Immigration lawyers argue that this blanket rule is a denial of due process. While detention of immigrants pending trial is consitutional (as determined by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003), detaining them without regard to their individual circumstances may not be. Lawyers for several immigrants detained as part of Operation Predator have filed habeas corpus petitions for their clients, seeking judicial review of the detentions.
One of the most recent of these cases is Alvarez v. Ashcroft, 03-CV-5680, which came before federal judge Faith Hochberg on January 13, 2004. After reviewing the case, Hochberg said, "One of my biggest concerns is otherwise good policies and initiatives are undermined when bad cases make bad law [because of] wooden decisions to use the same tool whether you're dealing with a Raggedy Ann doll or Attila the Hun."
The Department of Homeland Security then discontinued the automatic stay against Alvarez, terminating the case before Hochberg could make any further ruling against Operation Predator. The immigration bar plans to keep trying.