By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania
Jose Juan Chavez-Alvarez had a day in court on Tuesday — or his attorneys did, anyway. He wasn’t there, because he has been detained by immigration authorities at York County Prison for 2 years, 5 months, and 15 days (and counting) without a bond hearing while his complex immigration case makes its way through the courts.
Mr. Chavez-Alvarez is a far cry from a “flight risk.” He came to the U.S. as a toddler nearly 40 years ago, and became a lawful permanent resident of the U.S. at 15. He honorably served in the U.S. Army for nearly a decade, earning several medals and achievement certificates. Today Mr. Chavez-Alvarez is a father to two teenage U.S. citizen sons, and he owns his home in Central Pennsylvania.
In 2000, while he was stationed in South Korea in the military, he was court-martialed and pled guilty to four non-violent military offenses related to a sexual encounter he had with a female service member following a night of drinking. He served his sentence of thirteen months for these military offenses. His criminal record is otherwise spotless.
Nonetheless, on June 5, 2012, ICE agents showed up at his home early in the morning to arrest him, alleging that he was deportable because of his military infractions more than a decade earlier.
He has been locked up at York County Prison ever since that morning. Mr. Chavez-Alvarez has now been in immigration detention for 898 days — more than twice as long as he spent in jail for his military offenses.
His immigration case is a strong one. There are several reasons why, his lawyer argues, he shouldn’t be deported.
So why is someone like Mr. Chavez-Alvarez with strong communities ties, who is not facing criminal charges or serving a sentence, and who may be fully entitled to stay in the U.S. languishing in jail?
A federal “mandatory detention” statute requires certain non-citizens in removal proceedings to be imprisoned while their immigration cases proceed. Because of this “mandatory detention” requirement, Mr. Chavez-Alvarez hasn’t had a bond hearing since he was whisked out of his home on the morning of June 5, 2012. He’s never had a chance to put up bail or prove that he’s not going to skip town before his immigration proceedings conclude.
This “mandatory detention” statute that has kept Mr. Chavez-Alvarez in immigration detention for nearly two and a half years now was never intended to authorize this kind of prolonged detention, said the Court of Appeals in 2011 in Diop, another ACLU case. To avoid constitutional problems, the court interpreted the statute to only authorize detention without a bond hearing for a “reasonable” initial period of detention. As the Supreme Court has noted, the length of detention contemplated by Congress when it passed this “mandatory detention” statute was between 1.5 and 5 months; when detention is prolonged beyond that threshold, it becomes increasingly constitutionally “suspect.”
But since the 2011 Diop decision, the government has not agreed to give a single non-citizen a bond hearing – even though many of them have been in immigration detention for years.
On Tuesday, Mr. Chavez-Alvarez’s lawyer and the ACLU as amicus curiae (“friend of the court”) urged the Court of Appeals to provide guidance to the lower courts and the government by ruling that there should be a presumption that immigration detainees get a bond hearing after 6 months of mandatory detention so a court can make an individualized determination about whether it is necessary to continue imprisoning people like Mr. Chavez-Alvarez during his legal proceedings.
As the ACLU told the court on Tuesday, because immigration proceedings are often long, drawn-out affairs – especially where the non-citizens have novel or complex claims about their right to remain in the U.S. – prolonged mandatory detention often discourages non-citizens from pursuing avenues of relief from deportation that they’re entitled to, because asserting your rights means spending years in jail – even if you win. Non-citizens shouldn’t have to accept years of imprisonment without a bond hearing as a condition of asserting their legal rights. No one should.
Arguing Tuesday on behalf of Mr. Chavez-Alvarez was former ACLU-PA staff attorney Valerie Burch. Michael Tan, from the national ACLU Immigrants’ Rights Project, argued on behalf of the ACLU and ACLU of Pennsylvania as amici curiae.
Molly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights.