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When you win in federal court, you should go home, home to your job, your paycheck and your family. It is not for the increasing number of migrant workers who are detained. The arrests of ICE immigrants are now being reported nationwide, with immigrants re-arrested a few days – even minutes – after being released by a judge. Attorneys report these many arrest cases are in violation of the court’s own orders. What is happening and what it means to workers who resist.
Key Highlights: Quick Facts
- In the last year, at least 20 cases of re-detention have been identified throughout the country after the process of release.
- Since late January, immigrants have filed over 91,000 habeas petitions, the most that the last three administrations have had in their history.
- Over 25,000 immigrants who did not live in the country have been deported to other countries.
- Immigration officials have been held in contempt or threatened to be in contempt by federal judges in Louisiana, Pennsylvania and Minnesota.
What a Habeas Petition Does
The habeas petition is a request to a federal court that it rule on whether the government may detain an individual pending the resolution of a primary case. For employers, it is the quickest method of releasing detained employees from detention, as immigration court cases can last for months.
How Fast Are ICE Immigrant Re-Arrests Happening?
Quickly, as many attorneys were surprised. Seven men were once again arrested, even before they left the federal building in which they were arrested, in Minnesota. It is difficult to imagine walking out the door into four or more officers in front of you and in the middle of a court order, one attorney said. One man was arrested 10 days after a heart attack while in police custody.
Courts Are Pushing Back
A man was arrested after being released three times and a top immigration official was held in contempt by a federal judge in Louisiana. In October, the 10th US Circuit Court of Appeals rejected the government’s attempt to evade a habeas action by arguing that it could just detain the petitioner again, “after a pattern of re-detention has been demonstrated.
Why Third-Country Removals Matter
An increasing number of lawyers attribute the repeat arrests by ICE to deportation to third countries. Protected from deportation to their country of origin, workers may still be assigned to a place where they have no connections. One lawyer likened the fight to “Whac-A-Mole, with each nation in the world.
There are some judges now who require previous notice of any removal. A lawyer can file once he has three days.
What This Means for Workers
Frequent re-arrests have more than legal implications for a worker. It can mean:
- Lost wages – employers do not tend to keep an employee because he or she is absent from work often.
- A group that does not have a primary breadwinner.
- Avoidance of the workplace and/or court.
- In Louisiana and Texas, courts are waiting months to send cases to detention centres, with cases piling up near the courts.
How Lawyers Are Responding
Some lawyers now prepare a second petition in advance and submit it shortly before a client is moved to a different judge’s court, to ensure that the case does not go to a “bad judge. Workers should ensure that they have their release order handy, provide families with the contact information for their lawyer and inquire of their lawyer what notice the court has directed.
The Bottom Line
Winning is a step forward, but it’s not a victory; it’s just the first step. You may “win the battle and lose the war”, as one counsel said. Workers who are likely to be re-arrested by ICE should be prepared for a long journey and anticipate that a legal and financial safety net will take time to set up before they are arrested again.
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