By: Attorneys Robert L. Reeves and Nancy E. Miller

A U.S. District Court Judge in Northern California has taken a stand for justice and due process for detained immigrants. He has found that a post 9/11 regulation overruling an immigration judge’s release order is unconstitutional. The decision was issued in the case of Zavala v. Ridge.
The new regulation concerning legal immigrants with criminal convictions was issued on October 31, 2001. In all cases where the INS (or its successor U.S. Immigration and Customs Enforcement (ICE)) orders that an alien be held without bond or sets the bond at $10,000 or more, and the immigration judge subsequently orders the alien released, the INS or ICE can automatically stay (overrule) the judge’s decision and the alien remains in custody.
In the case in Northern California, Mr. Zavala, had a green card since 1990. He was convicted of a lewd act in 1994 and sentenced to six months in jail. ICE charged him with having been convicted of a crime of moral turpitude. Because his jail sentence was less than six months, the immigration judge found that his crime was within the petty offense exception and terminated the case. ICE issued an new Notice to Appear and charged Zavala with being an aggravated felon for having a conviction for “sexual abuse of a minor”. He was taken into ICE custody in San Francisco. Bond was set at $25,000 by the deportation officer. Zavala was transferred to Arizona where the deportation officer decided that no bond would be permitted. Zavala requested a redetermination of the bond decision by the immigration judge. The judge held a hearing on the matter in November of 2003 and determined that Zavala was not a danger to the community or a flight risk. He set bond at $5,000. That same day, ICE filed a Notice of Intent to Appeal Custody Redetermination. The result of that filing automatically stayed the judge’s decision during the entire appeal process.
In December of 2003, Zavala requested a change of venue (transfer) to Oakland, California. After he was transferred, he filed a writ of habeas corpus with the U.S. District Court claiming that the automatic stay provision was a denial of substantive and procedural due process and was ultra vires because it exceeded the authority bestowed upon ICE by Congress. The case was assigned to U.S. District Court Judge Jeffrey S. White. On March 1, 2004, Judge White granted the writ. The judge agreed with all three of Zavala’s arguments. He found that, while the regulation claimed that its purpose was to protect public safety, the immigration judge had already found that Zavala’s release would not endanger the community. He also found that automatic stays violate due process which requires that stays be issued on a case-by-case basis after a reasoned finding of threat to safety or flight risk. The case further concluded that no special justification exists that would warrant an individual’s constitutionally protected interest in avoiding physical restraint. Finally, the order held that the regulation was ultra vires because it was a “back-ended approach [that] effectively transforms a discretionary decision by the immigration judge to a mandatory detention by the Service.”
It is encouraging to see that federal court judges are not allowing themselves to be influenced by the fear and anger that seems to have overtaken members of Congress and various agencies in the wake of the great tragedy of 9/11. Judges like Judge White understand that we cannot destroy the constitution in an effort to defeat terrorists. As Benjamin Franklin said, “they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” We at Reeves & Associates will continue to fight to maintain immigrants’ rights to essential liberty. We proudly conduct this fight in the halls of CIS, in the immigration courts, at the Board of Immigration Appeals, in the federal court and through our representatives in Congress – wherever it is necessary to go to protect the rights of immigrants.