DOJ Stumbles at Hearing on Detaining Immigrants

     BOSTON (CN) — Criticizing an attorney for the government for arguing issues he never raised in briefing, the First Circuit seemed likely at a hearing Wednesday to uphold classwide bond hearings for people in immigration detention.
     The American Civil Liberties Union won the hearings via injunction in 2014. U.S. District Judge Michael Ponsor found that the government had no basis for mandatory detention of an immigrant "simply because he or she has been convicted of a crime at some point in his or her life."
     If the government waits too long after the alien is released from criminal custody, allowing the alien to return to society, Ponsor said the alien "is entitled to the opportunity to argue for his or her conditional release."
     Ponsor gave immigration authorities a window of 48 hours to begin mandatory detention after the alien is released from criminal custody. If weekends or holidays intervene, the window is no more than five days.
     But the Justice Department argued in a brief last month that the First Circuit should consider whether the District Court's 48-hour rule "is consistent with this Court's own interpretation of the requirements."
     Saying the 2014 ruling is inconsistent with the First Circuit's en banc decision on a related appeal, the government to vacate Ponsor's remedies.
     Urging a three-judge appellate panel to reverse Wednesday, Justice Department attorney Hans Chen told the First Circuit in Boston that 48-hour window is unreasonable because it does not allow enough time when dealing with individuals who might be compelled to hide from authorities.
     Though sympathetic to this position, U.S. Circuit Judge Bruce Selya noted that the government's court filings made no mention this argument.
     "There may be persuasive force in that argument, but what I question is whether you've made that argument in your brief," Selya said. "I would hate for a case like this to go by default because the government has failed to brief an important issue that may well be decided in its favor if it was proffered in a timely manner."
     U.S. Circuit Judge Sandra Lynch meanwhile questioned why the government did not challenge the injunction in District Court before coming to the appellate panel.
     "Why should that issue come to us when you have not made the argument to the court which actually in some ways, it could be argued, prematurely issued relief?" Lynch asked.
     Noting that the challenged injunction has been in place for two years, Lynch also asked if there had been any instances of enforcement problems connected to the practicality of the 48-hour rule.
     Chen said there had not been any actual instances, but suggested that it would be possible for an individual with an accomplice to hide out from authorities for at least 48 hours immediately after his release.
     ACLU attorney Adriana Lafaille earned some harsh questions from the panel as well.
     Lynch chastised said neither attorney attempted to apply the court's en banc precedent.
     "There is some frustration over what I will call the blinders that each of you has attempted to put on our court in handling this problem," she said. "It's a real-life problem. We're quite well aware of that, and we're struggling to find a good solution to this problem."
     Though the Wednesday hearing looked at classwide relief, the en banc First Circuit already upheld the detention hearings in the consolidated cases of two immigrants, Leiticia Castaneda and Clayton Gordon.