Pichardo v. Aviles
The Department of Homeland Security (“DHS”) detained Jose Pichardo, a lawful permanent resident, who was living in the United States since his initial entry in 1981. He has lived in New York City with his U.S. citizen children and extended family for over thirty years. DHS refused to release Mr. Pichardo and argued that Mr. Pichardo should be deported, and remain in jail without bail for the entirety of the deportation proceeding. ICE’s argument is illogical because Mr. Pichardo entered the United States in 1981, and has numerous ties to the community which prove that he is not a danger to the community or flight risk.
Mr. Pichardo’s counsel, filed a petition for writ of habeas corpus in the New Jersey District Court, which was victorious. He argued that Mr. Pichardo should be released because the length of Mr. Pichardo’s detention was unconstitutional. Mr. Pichardo was detained for over one year. Courts have held that the Due Process Clause of the Fifth Amendment permits mandatory detention for only a “reasonable period of time.”
In Chavez-Alvarez, the Third Circuit Court of Appeals, held that DHS can not hold an immigrant in jail for a prolonged period of time. It was an integral decision in refining the rubric that the Third Circuit enunciated for prolonged detention in Diop. In Pichardo, the District Court referenced Diop and Chavez-Alvarez:
The Third Circuit held that “reasonableness [of prolonged detention], by its very nature, is a fact-dependent inquiry requiring an assessment of all circumstances of a particular case.” citing Diop, 656 F. 3d at 234. A reasonableness determination must take into account a given individual detainee’s need for more or less time, as well as the exigencies of a particular case. Id. However, “‘the constitutional case for continued detention without inquiry into its necessity becomes more and more suspect as detention continues past [certain] thresholds'”. Chavez Alvarez at 474.
In Pichardo, the District Court Judge held that Chavez Alvarez established a “guide”. I interpret this to mean that a period of detention for more than one year is presumptively unreasonable and the burden of proof is on the government to prove otherwise. The most important part of this decision, is that District Court judge held that, “The Third Circuit refused to decide in Chavez-Alvarez whether a petitioner’s delay tactics in his immigration proceedings should preclude a bond hearing”. The District Court rejected the most common and powerful argument put forth by the United States Attorney’s office-that the prolonged detention was the fault of the Petitioner because of his delay tactics. This interpretation is important because after Diop, prolonged detention habeases were regularly denied because the immigrant was blamed for the delay. Here, the rubric has been altered. The government can no longer blame an immigrant for pursuing relief and the extensive time it will take for the case to conclude.
Then, the District Court judge went through a fact-specific inquiry as to the reasons for delay and an assessment of the prospects for a quick resolution and held that the detention was unconstitutional. For a more detailed discussion of the fact specific inquiry please see the decision below.
Finally, Judge McNulty, ordered the Immigration Court to conduct a bond hearing. Judge McNulty cited to several recent decisions, and held that the unreasonable and prolonged detention of immigrants whose cases are still pending before immigration is unconstitutional. He found that a bond hearing must be held, and the government must prove why Mr. Pichardo should not be released.
This case is helpful for any immigrant who has been detained for more than six months in jail during his removal proceedings. If your family member is in this situation you should contact my office immediately to provide. If you are an attorney and you find a client in a similar situation then you should contact my office right away.
Finally, I am working on a book on petitions for writ of habeas corpus and freeing immigrants from jail. Sign up below for more information about it.