DOJ Blasted for Timing and Use of News Story

     PASADENA, Calif. (CN) – A Ninth Circuit judge rebuked the Justice Department for citing a newspaper article about an undocumented immigrant accused of sexually assaulting a teen to support the case for ending bond hearings for immigrants, and said she may order the government to reveal the article’s anonymous source.
     DOJ trial attorney Sarah Wilson brought up the Los Angeles Times’ story on Friday as she urged the appeals court to overturn an injunction requiring bond hearings for criminally charged immigrants who have been detained for more than six months.
     Circuit Judge Kim Wardlaw – a Bill Clinton appointee – discussed the July 21 article with the attorney during oral arguments at the Richard H. Chambers U.S. Court of Appeals courthouse, wondering aloud if the federal government had leaked the news to the Times to “influence” proceedings.
     “As far as you know, you may be getting another order to tell us exactly who the source for that story was. You’re not the press. And you don’t have the right to protect that information,” said a visibly angry Wardlaw.
     Published on Wednesday under the headline “Sex offender accused of assaulting teen was in U.S. illegally,” the article draws a clear line between Wardlaw’s April 2013 opinion affirming bond hearings for criminal immigrants and the release of Filipino citizen Keane Dean, who is accused of sexually assaulting a 14-year-old girl.
     After citing a direct quote from the judge’s written order – “This injunction will not flood our streets with fearsome criminals seeking to escape the force of American immigration law” – the article then states that Dean was released on a $10,000 bond this April so he can contest his immigration case.
     Dean is part of a “class” of detainees who successfully persuaded the federal court to allow bond hearings for immigrants detained over six months, Wilson said.
     But Wardlaw noted during the hearing that it was the Justice Department’s decision to release the man on to the streets.
     “I was also wondering about the timing of that article and the fact that it was released by federal authorities,” Wardlaw said. “It was Wednesday of this week. Do you think there was any object in giving that information to the LA Times to influence the outcome of this proceeding?”
     “I certainly have no reason to believe that, your honor,” Wilson said, adding that as far as she knew no one in her office approached the Times.
     Wardlaw said it would not be “ethical or proper and perhaps could even be criminal to have given information to the LA Times to possibly influence the outcome of this hearing,” and called the timing of the story “very coincidental.”
     The judge was also annoyed that Wilson had brought up the story even though it was not in evidence.
     “It’s information from a newspaper, from a source who we don’t know,” Wardlaw said. “I was hoping you wouldn’t raise it because it’s totally extrajudicial and it’s improper to be raised. But you raised it. So now we have to figure out what to do.”
     Wilson tried to interject but Wardlaw continued: “This is a very serious issue. And it’s an important issue. And you should not debase it by bringing in stuff that’s in a newspaper.”
     Wilson declined to comment after the hearing.
     More than five years ago, the ACLU Foundation of Southern California filed a class action complaint urging a federal judge to rule that immigrants detained longer than six months on criminal charges should be given the right to a bond hearing.
     The ACLU says that in southern and central California, hundreds of detainees have been jailed for lengthy periods while fighting their immigration cases.
     The lead plaintiff in the case, Mexican national Alejandro Rodriguez, came to the United States when he was a baby and became a legal permanent resident in 1987 at the age of nine.
     He lived in the country his whole life until authorities tried to deport him back to Mexico after he was arrested on theft and drugs charges.
     Rodriguez was detained for three years without a bond hearing, his class action complaint alleges.
     In August 2013, U.S. District Judge Terry Hatter issued a permanent injunction ordering the bond hearings. The government appealed.
     In a brief, officials asked the Ninth Circuit to overturn the “extraordinary injunctions entered by the district court, which rewrite immigration laws that govern the detention of hundreds of thousands of aliens each year.”
     “The district court created a new, across-the-board rule that virtually any alien detained under the relevant statutes – no matter the circumstances – is entitled to a bond hearing after six months,” the brief states. “The district court required such hearings for criminal aliens even though Congress has categorically determined they should receive no hearings during their removal proceedings because they present such grave risks of recidivism and flight.”
     ACLU also cross-appealed asking for additional protections so that immigration judges can consider alternatives to detaining individuals before ordering prolonged detention.
     The civil rights group also argued that immigration judges should not allow detentions if a detainee is not likely to be deported at the end of proceedings and that bond hearings should occur every six months.
     Outside the courtroom after the morning hearing, ACLU attorney Ahilan Arulanantham said the injunction had provided “critical protection” and allowed hundreds of people to stay with their families while their cases are pending.
     “These are people who have legitimate challenges to deportation. One in three of them win their cases and 70-something percent of them are applying for relief,” Arulanantham said. “That population of people, because they have relief, that’s usually because they have citizen children, other family here. Or they are people who are torture victims and people coming from very dangerous situations.”
     “It doesn’t make sense to imprison them while their immigration cases are pending,” he added.
     Judge Ronald Gould, appearing via video, and Montana U.S. District Judge Sam Haddon joined Wardlaw on the panel. The court did not indicate when it expects to rule.

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