Judge Skewers US on Separation of Immigrant Couples

BOSTON (CN) – A federal judge upbraided an attorney for the U.S. government Tuesday in a case where immigrants say their marriages to U.S. citizens led to their being targeted for arrest.

“I think it’s quite clear that they have been denied due process,” U.S. District Judge Mark Wolf said this morning, sparring for at least an hour with Department of Justice attorney Mary Larakers.

Attorneys for four immigrant couples brought the suit here last month as a class action.

One of the named plaintiffs, Lucimar de Souza, was apprehended on Jan. 30, 2018, immediately after she and her husband of nearly 12 years participated in the interview process for their I-130 petition for alien relative.

De Souza remained in custody as of this morning, but attorneys at the American Civil Liberties Union secured the release in February of one of her co-plaintiffs, Lilian Calderon, who experienced a similar arrest around the same time.

The ACLU noted late Tuesday that the U.S. Customs and Immigration Services arranged for de Souza’s release after the hearing, even though Wolf reserved decision.

“Lucimar’s detention was both inhumane and unlawful,” ACLU attorney Adriana Lafaille said in a statement. “We are so pleased that she is able to rejoin her husband and young son – just in time for Mother’s Day – while we continue to work to protect Lucimar’s rights and fight against other detentions like this one.”

Federal regulations say ICE had 60 days to properly notify de Souza and her attorney about a pending removal hearing, which would have to take place within 90 days of her arrest, but ICE did not send her a notice until April 23. Even then, the notice was sent to the Suffolk House of Corrections where she is currently being held.

Judge Wolf said Tuesday that before he could address the validity of the regulation, he wanted to focus on the fact that Homeland Security does not seem to be following its own set of rules.

Larakers acknowledged that the government had made a mistake when it failed to send out timely notices, but she claimed that the government was attempting to correct that error by sending out the late notices.

“When it became aware what ICE had done, we attempted to remedy it,” she said, “The due process recognized is to protect against prolonged detentions.”

Wolf appeared skeptical, however, that this was a proper remedy.

“If neither of them received the process that is due, and you agree that the government has an obligation to follow its own procedures, I think justice was wronged,” Wolf said.

Wolf also noted that it seemed to him that it was becoming more prevalent for the Department of Homeland Security to ignore its own regulations, particular those that cover notification and detainment time limits.

The judge took pains to stress the severity of keeping a detainees incarcerated beyond the regulatory limit.

“You’ve probably never spent a day in jail,” he said to Larakers. “It’s a form of irreparable harm to be detained.”

In addition to the ACLU, the immigrants are represented by the law firm WilmerHale.

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