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Newark, N.J.-A federal judge has expressed “serious” doubts about the way the U.S. Department of Homeland Security (DHS) is using an administrative rule, written to combat terrorism, against sex offenders. The rule is “wooden,” produces cases based on “quicksand” and “may be an abuse” of civil rights, U.S. District Judge Faith Hochberg recently suggested to the U.S. attorney’s office from the bench. The rule has come up in at least six cases in New Jersey and dozens more around the nation, according to attorneys on both sides. The suits charge that programs implemented to guard national security are being used on everyday criminals. The program at issue, called Operation Predator, automatically jails immigrants convicted of sex offenses before deporting them. The mass arrests have put hundreds of immigrants, legal and illegal, behind bars for months while they await deportation. The detentions occur when a trial attorney in the DHS Bureau of Immigration and Customs Enforcement checks a box on an intake form, activating an “automatic stay” rule. It is that aspect of the rule-federal functionaries subjecting people to lengthy jail terms because of a checked box-that has triggered litigation. The box is automatically checked in Operation Predator cases, under Title 8 C.F.R. 3.19 (i)(1)(2), “Automatic stay in certain cases.” That regulation was written to enable the government to detain people suspected of being linked to al-Queda. It allows the DHS to ignore bond decisions or release orders by immigration judges and the Board of Immigration Appeals. Operation Predator, intended to send home foreign rapists and child molesters, has swept up some men whose offenses were minor, whose convictions were served out years ago and who have lived law-abiding lives since. No appeal yet The immigration bar is banking on a case going up to the 3d U.S. Circuit Court of Appeals in the hope of having the policy struck down as a denial of due process. The U.S. attorney’s office, representing the Justice Department and DHS, has managed to prevent any case from reaching a position where it can be appealed. The case before Hochberg, Alvarez v. Ashcroft, No. 03-CV-5680, featured one of the more hopeful fact patterns for the immigration bar before it was rendered moot. Ismael Alvarez, a legal immigrant and native of El Salvador, was 28 years old when, in the mid-1990s, he was caught having a consensual sexual relationship with a 15-year-old girl, according to his attorney, Newark solo practitioner Regis Fernandez. In 1996, Alvarez pleaded guilty to endangering the welfare of a child and served two years of probation. A psychiatrist wrote in an evaluation that “in his culture and country of origin . . . it is not unusual for girls of 14 to have sex and marry at a young age . . . .I do not feel he poses a threat to society or is, or will be, a sex offender.” On Sept. 10, 2003, he was arrested by DHS because, under the Immigration and Nationality Act, he had been convicted of a crime of moral turpitude. Immigration Judge Henry Dogin set his bond at $25,000. Because a subject of Operation Predator was involved, the judge’s decision was automatically stayed, and Alvarez remained in the Bergen County, N.J., jail. Fernandez argued that the process was unconstitutional because it throws a class of people who have served their time back into jail without a meaningful hearing. Assistant U.S. Attorney Caroline Sadlowski responded that under 8 U.S.C. 1226, the attorney general may keep immigrants in jail pending deportation. Sadlowski’s case relied heavily on Demore v. Kim, 538 U.S. 510 (2003), in which Chief Justice William H. Rehnquist reinforced the statute. Hochberg, however, focused on an issue that Demore did not address directly: whether the government’s discretionary detention power can be exercised universally or whether meaningful individual inquiries into a detainee’s dangerousness must take place first. Hochberg ordered Sadlowski and Fernandez back into court, but Sadlowski told the judge that Alvarez would be allowed out if he could post the bond, rendering the case moot. “It leaves the issue with the administration only, which is our position as to where it should be,” she said afterward.

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