By David M. Greenwald
A federal judge this week granted a writ of habeas corpus that will allow a man detained at the Mersa Verde Detention Facility to have a custody hearing within four weeks or be released—after spending more than a year in detention after being held on a immigration hold following the serving of a term in prison.
Nectali Ulises Romero has been held in custody by ICE for more than a year, and was facing deportation based on a prior conviction that qualifies as an aggravated felony.
Romero, represented by Hayley Upshaw of the San Francisco Public Defender’s Office, claimed that he was “improperly detained under the mandatory detention provisions of the Immigration and Nationality Act, in violation of his Fifth Amendment right to due process.”
He filed a Petition for Writ of Habeas Corpus to either order his release or, alternatively, a hearing to justify his continued detention.
Romero is a Salvadoran national, and a longtime Lawful Permanent Resident of the US, now currently detained by ICE at Mesa Verde Detention Facility.
In 2016, he was convicted in Los Angeles County for lewd or lascivious acts with a minor under 14 years of age and sentenced to six years incarceration. Having served four and a half of those years, he was scheduled for release in December 2019.
Upon release, he was detained by ICE under US law that directs that the government “shall take into custody any alien who is deportable” based on a conviction of an aggravated felony.”
The San Francisco Immigration Court in January and February 2020 found him deportable. He remained in custody for over a year, and had yet to receive a bond hearing.
He argues that his “prolonged detention without a hearing on danger and flight risk violates the Due Process Clause of the Fifth Amendment and the Eighth Amendment’s Excessive Bail Clause.”
US Magistrate Judge Thomas Hixson wrote, “In this case, the due process concerns raised by Petitioner’s detainment warrant relief. Petitioner has been detained for over a year, and there is no remotely certain end in sight as to his custody.”
The judge continues, “The government doesn’t even suggest when Petitioner’s BIA appeal will be resolved,” with the process potentially taking well over a year to proceed as it heads for the Ninth Circuit for a review.
The conditions of Romero’s detention were bad. Judge Hixson noted that Judge Chhabria denied Romero emergency release in a class action in his case.
The judge writes, “In an effort to ameliorate conditions at Mesa Verde in response to the COVID-19 pandemic, Judge Chhabria instituted a bail process whereby ICE detainees at the facility submitted bail applications for release on bail while that case is pending. Petitioner filed a bail application pursuant to Judge Chhabria’s order and a renewed application, and was twice denied bail.”
Judge Hixson noted, “But that process, as far the Court can tell, did not involve an opportunity for individual detainees to testify at a hearing and/or present evidence.”
The judge concluded: “Petitioner’s prolonged and ongoing detention without a custody hearing is not compatible with due process. He is entitled to relief.” In this case, “The remedy for the due process concerns here is an individualized custody hearing.”
As Hayley Upshaw pointed out, “The government has never had to justify his detention because he falls under the mandatory detention statute.”
She further notes that, while being detained at Mesa Verde, he has “luckily survived the COVID-19 outbreaks but it has been an incredibly stressful period, witnessing the virus spread like wildfire within the facility and fearing for his health and safety. The pandemic has also eliminated family visits and his family who used to come to visit him weekly before the pandemic have not been able to see him in person since March.
The judge has therefore granted Romero’s release from custody unless the government can demonstrate within four weeks “clear and convincing evidence (for) Petitioner’s continued detention.”
Hayley Upshaw noted, “While this is a great outcome for Mr. Romero, the unfortunate reality is that our punishing immigration laws still require the government to hold thousands of others in jail, sometimes for very long periods of time, without due process.”
As she noted, “Many immigrants continue to languish in jail based on the unconstitutional mandatory detention statute. Filing these kinds of lawsuits in every case is tremendously inefficient and practically impossible for most immigrants in custody who lack counsel. The better solution is for Congress to make immediate and bold changes that end mass incarceration and guarantee fairness for immigrants.”
Last week, the San Francisco Public Defender’s Office was among 15 offices across the country pushing for the right of all immigrant detainees to have the right to due process with appointed counsel.
—David M. Greenwald reporting
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9
Support our work – to become a sustaining at $5 – $10- $25 per month hit the link: