ALEXANDRIA, Va. – A federal judge in the U.S District Court for the Eastern District of Virginia certified Rodriguez Guerra v. Perry as a class action lawsuit on Friday, allowing dozens of arbitrarily detained immigrants to join the lawsuit brought by ACLU of Virginia, Capital Area Immigrants’ Rights Coalition, and National Immigration Project against the Washington Field Office of Immigration and Customs Enforcement (ICE).
“After people win their immigration cases in Virginia, ICE is supposed to let them go – but instead, it’s been unconstitutionally detaining them for months in violation of its own policies,” said ACLU of Virginia Staff Attorney Sophia Gregg. “Today’s order isn’t just the first lawsuit of its kind to ever be filed in the Fourth Circuit: it’s a first step towards getting justice for the dozens of people whom ICE has harmed here in Virginia.”
Immigration judges grant people asylum, withholding of removal or relief under the U.N. Convention Against Torture (CAT) when they would likely face severe persecution, torture, or death in their countries of origin. Since 2004, it has been the government’s policy to promptly release non-citizens granted such relief.
Yet in all but one case since legal counsel began tracking, ICE has continued to detain the non-citizen who was granted asylum, withholding of removal or protection under CAT for at least several months after they had won their cases in Virginia. Sometimes ICE appeals the relief grant and holds the non-citizen while its appeal is pending. Sometimes ICE does not appeal, but nonetheless holds the non-citizen for an average of three more months while it fruitlessly attempts to deport them to alternative countries to which they have no connection.
“ICE’s practice of detaining non-citizens even after they already won their immigration case is in clear violation of its own policies,” said National Immigration Protect Staff Attorney Amber Qureshi. “Today’s order makes it clear that it’s not just our own clients who have been impacted by ICE’s brazen flouting of the constitutional protections we have in this country.”
ICE has repeatedly reissued and strengthened its longstanding policy of releasing non-citizens after they have won their immigration cases. Now, by failing to do so, ICE’s Washington Field Office is violating both its own policy and constitutional protections against indefinite and arbitrary detentions.
There is little justification for ICE to hold people after they win their cases. When ICE appeals a relief grant, it is rarely successful in reversing the decision. And even when ICE is authorized to deport people to third countries, those countries rarely if ever take them. In fact, according to the government’s own data, less than three percent of people granted withholding of removal or CAT relief are actually removed to an alternative country.
"There is no good reason to continue to hold these clients in detention," said CAIR Coalition’s Immigration Impact Lab Senior Attorney Austin Rose. “We believe our class action lawsuit will prove ICE has acted unlawfully by holding people even after they won protection from deportation to their countries of origin.”
The judge's order in Rodriguez Guerra v. Perry is one of the first decisions in the country, and the first in the Fourth Circuit, certifying a class of non-citizens since the Supreme Court of the United States’ decision in Garland v. Aleman Gonzalez. That decision largely barred non-citizens from seeking class-wide injunctive relief against ICE, but left open declaratory relief on a class-wide basis, which this lawsuit is pursuing.
After discovery is completed in the coming weeks, the next step in the litigation will be to seek a class-wide declaration that ICE is unlawfully violating its own policy by detaining non-citizens after they win their cases. Such a decision would not only help secure the release of the lawsuit’s plaintiffs from detention, but would also obligate ICE to follow its own policy in the future.
