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A federal judge expressed “serious” doubts last week about the way the U.S. Department of Homeland Security is using an administrative rule, written to combat terrorism, against sex offenders. The rule is “wooden,” it produces cases that are based on “quicksand” and it “may be an abuse” of civil rights, U.S. District Judge Faith Hochberg 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, “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 on Oct. 26, 2001, to enable the government to detain Muslims suspected of being linked to al-Qaida. It allows the DHS to ignore bond decisions or release orders by immigration judges and the Board of Immigration Appeals, and keep immigrants in jail at the attorney general’s discretion. Although Operation Predator is intended to send home foreign rapists and child molesters, it also has swept up a number of men whose offenses were minor, whose convictions were served out years ago and who have lived law-abiding lives since. As a result, the federal courts have seen a swath of habeas corpus petitions asking that men who present no danger to society be allowed out of jail while they contest their deportation orders. The wave of cases has gotten the bench’s attention, said Hochberg, who sits in Newark. At the previous Friday’s judges’ lunch, she told the court, “All the judges are comparing these cases [and wondering] why are they ending up here in sporadic habeas petitions, peppering the courthouse? … That’s a very serious question.” At least six cases contesting the automatic jailings have been filed in federal court in Newark, with varying fact patterns. The outcomes have been mixed — three in favor of the petitioner, one against and two unresolved. More are in the pipeline, lawyers on both sides agree. The immigration bar is banking on a case going up to the 3rd U.S. Circuit Court of Appeals in the hope of having the policy struck down as a denial of due process. But the U.S. Attorney’s Office, representing the Justice Department and the DHS, has so far managed to prevent any case from reaching a position where it can be appealed. The two sides are thus locked in a race to see which one can exhaust or frustrate the process first. While sex offenders rarely make sympathetic petitioners, the case before Hochberg on Jan. 13, Alvarez v. Ashcroft, 03-CV-5680, featured one of the more hopeful fact patterns for the immigration bar. 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, he pleaded guilty to endangering the welfare of a child and served two years of probation. He received no jail time. A psychiatrist wrote in an evaluation: “[I]n 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.” Alvarez has since bought a house in Morristown, N.J., where he lives with his wife and three children, and is an assistant engineer in Manhattan. On Sept. 10, 2003, he was arrested by the Department of Homeland Security 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 cash. But, because a subject of Operation Predator was involved, the judge’s decision was automatically stayed — and Alvarez remained in the Bergen County lockup — because DHS had checked the “automatic stay” box on his deportation papers. Fernandez argued that the process was unconstitutional because it throws an entire class of people who have served their time back into jail without a meaningful hearing. In response, Assistant U.S. Attorney Caroline Sadlowski noted that under 8 U.S.C. 1226, the attorney general has the discretion to 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 Rehnquist reinforced the statute by holding that “Detention during removal proceedings is a constitutionally permissible part of that process,” especially in cases where the deportee has a criminal record. Hochberg, however, was fixated on an issue that Demore did not address directly: whether the government’s discretionary detention power can be exercised as a blanket diktat or whether meaningful individual inquiries into a detainee’s dangerousness must take place first. There was no indication that Alvarez was dangerous, Hochberg noted. “One of my biggest concerns is otherwise good policies and initiatives are undermined when bad cases make bad law [because of] wooden decisions to use the same tool whether you’re dealing with a Raggedy Ann doll or Attila the Hun,” she said. Then, in a broadside clearly aimed at what she called “the attorney general’s machinery,” Hochberg, herself a former U.S. Attorney for New Jersey, said: “I have suspicions with regard to whether any discretion is being exercised as to boxes being checked … on a form that was really meant for a post-9/11 time period.” “I understand box check-offs in the wake of 9/11,” Hochberg concluded. “I don’t understand box check-offs in a Tier 1 Megan’s Law case.” Tier 1 is the least serious type of sex offender. On Jan. 13, after failing to get answers on the scope of Operation Predator and the number of arrests made nationally, Hochberg ordered Sadlowski and Fernandez back into court on Jan. 15. By then, however, Sadlowski was able to tell Hochberg that DHS was not going to continue its automatic stay, and that Alvarez would be allowed out if he could post the bond. That made the case moot — and keeps it away from the Court of Appeals — which Sadlowski claimed was a victory: “It leaves the issue with the administration only, which is our position as to where it should be,” she said afterward. Alvarez’s wife, Berta, had more mixed feelings. Although happy that her husband might get out of jail, she said, “I think they are still not right about what they are doing. They’re bothering people needlessly.” The broader issue, however, remains very much alive. Chief Judge John Bissell and Judges Jose Linares and Joseph Greenaway have all yet to decide cases that hinge on the same rule. Bissell’s case is the most promising for plaintiffs, while Greenaway’s looks best for the government, should either form the basis of precedent. In Velez v. Ashcroft et al, 03-CV-5862, Bissell must decide whether a Colombian man, Alvaro Velez of Elizabeth, N.J., is being illegally detained. Velez confessed and pleaded guilty in 1995 to endangering the welfare of a child — his 11-year-old stepdaughter — in a single incident in which she was groped without witnesses. However, the daughter, now in her 20s, has written a letter claiming that she made up the allegation “just to get back at her mother.” Her mother had divorced her biological father and the mother disapproved of her daughter’s boyfriend. “I would like to rectify and tell you all that he is not in fact a sexual child abuser,” she wrote. Greenaway has a harsher set of facts. His plaintiff, Giovanni Pisciotta of Elizabeth, was convicted of two robberies and attempted rape. The crimes occurred in the 1980s, however, and Pisciotta has had no legal problems since. On Dec. 4, 2003, the Board of Immigration Appeals ruled in Pisciotta’s favor, and he has been remanded to an immigration judge for another bond hearing. Pisciotta’s lawyer, associate Jerard Gonzalez of Meyner & Landis in Newark, N.J., also represented Muslims detained by the same rule after Sept. 11. “Now it’s rearing its ugly head on cases unrelated to national security,” he says. Although the cases that have been adjudicated have gone both ways, they feature a common thread: All the judges have swept past a portion of the statute authorizing the detention rule, 8 U.S.C. 1226, which states, “The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” The logic the judges appear to be following is that they are not reviewing the decisions, but the constitutionality of the process. Ironically, that principle was reaffirmed in the same case the government is using to beat back the cases, Demore.

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