by Charles Siegel
In my column last month, I described our client Leqaa Kordia’s year spent in ICE detention at the Prairieland Detention Center in Alvarado, Texas, and the legal effort that eventually resulted in her release by order of an immigration court. In this column, I will sketch out her parallel effort, in federal court, to obtain a writ of habeas corpus, and the separate issues raised in that proceeding. I will also try to explain why I consider Leqaa’s case to be, as I said last month, a grotesque, pointless abuse of the American immigration justice system.
To recap briefly, the immigration courts and the federal courts are distinct. The former are administrative courts within the Department of Justice, and so Trump can summarily fire immigration judges, and in fact has fired more than 100 of them for transparently ideological reasons. Federal courts, conversely, are within the judicial branch, and so are theoretically free from pressure by the executive.
When a person is detained, he or she may petition to be released while deportation proceedings are pending, and often release is conditioned on the posting of a bond if an immigration judge determines that the person is neither a danger to the community nor a flight risk. In Leqaa’s case, an immigration judge held, three times, that she was neither. Each time the government appealed, and eventually the judge required the posting of a $100,000 bond. When this was immediately paid, the government finally did not appeal, and Leqaa was free. The government’s effort to deport her continues, but at least she will be living at home and helping care for her mother and half-brother.
Nearly a year ago, a few weeks after she was detained and flown to Texas, other members of Leqaa’s legal team filed a petition for a writ of habeas corpus in federal court in Dallas. To be clear, our firm’s role was primarily that of local counsel; when a case is filed in federal court, there usually must be a local lawyer involved. While we participated in all aspects of the case, the vast majority of the work was done by the formidable lawyers at the Texas Civil Rights Project, Muslim Advocates, and the Creating Law Enforcement and Accountability Responsibility (CLEAR) clinic at CUNY Law School. Hats off also to Leqaa’s excellent immigration counsel, Professor Sarah Sherman-Stokes of the Boston University Law School, who runs the Immigrants’ Rights and Human Trafficking Program there.
The petition made four main claims. The first was that Leqaa’s detention was a violation of her First Amendment rights to speak freely and to “petition the Government for a redress of grievances.” The Supreme Court has long held that the First Amendment applies to all persons in this country, including noncitizens. The evidence strongly indicated that Leqaa had been detained and confined solely for speaking her mind about Gaza. Indeed, Trump had promised to do exactly what DHS had done: arrest, detain and deport anyone who dared advocate for Palestinian rights. And in the typical visa “overstay” case, the person the government seeks to deport is almost never kept in detention during the legal proceedings, especially when he or she has no criminal record and presents no flight risk.
Second, the habeas petition asserted a denial of procedural due process under the Fifth Amendment. The heart of this claim was that the automatic stay provision, which kept Leqaa in detention for months notwithstanding the immigration judge’s determination that she posed no danger to the community and no flight risk, amounted to a denial of due process with no procedural safeguards at all.
The third claim was a denial of Leqaa’s substantive due process rights under the Fifth Amendment. As with the First Amendment, the Supreme Court has held that the “Due Process Clause applies to all persons, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” The clause, of course, states that no person shall be deprived of liberty without due process of law. As a general matter, confinement of someone for noncriminal purposes is only allowed in narrow, “non-punitive” circumstances, and in the immigration context those have traditionally been preventing flight and danger to the community. Since the immigration court had determined that neither was true for Leqaa, her confinement was based solely on the government’s drive to punish her for her speech.
The final claim was made under the Religious Freedom and Restoration Act, and asserted that DHS had forced Leqaa “to endure conditions that substantially burden her exercise of Islam, which cannot be justified by any compelling interest, and are unnecessarily restrictive,” including “failure to provide halal meals, interfering with her ability to pray, and failing to provide routine religious accommodations such as baggy, modest clothing and a prayer mat.”
Almost two months after the petition was filed, the magistrate judge issued her ruling. (In circumstances like this, federal magistrates technically issue “recommendations” to district judges, who are nominated by the president and confirmed by the Senate and serve for life or until retirement; magistrates are appointed by the district courts and serve for fixed terms.) She addressed only the second claim for relief, noting that there were questions about whether she could consider certain of the other claims, and that release could be granted even if only one claim succeeded. As to the procedural due process claim, she ruled as follows (italics mine):
Petitioner claims the automatic stay provision violates her procedural due process rights because the regulation allows DHS to continue her detention for months without requiring DHS to provide any individualized justification for its action or providing her with any meaningful opportunity to challenge her continued confinement. To succeed on the merits of this claim, Petitioner must show a constitutional deficiency in the procedures resulting in her detention by applying [a] balancing test, which considers: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through [available] procedures,” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
Here, Petitioner has a significant liberty interest in being free from detention—particularly because an IJ determined, after an evidentiary hearing, that she is entitled to release on bond. Indeed, “[f]reedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”…Next, the automatic stay provision creates a serious risk of erroneous deprivation of Petitioner’s liberty interest. Because the stay takes effect without requiring DHS to meet—or even consider—any threshold standard and Petitioner has no opportunity to challenge the imposition of the stay, there are no procedural safeguards to prevent prolonged, unwarranted detention pending DHS’s appeal.
Respondents argue that Petitioner’s detention because of the automatic stay is not unconstitutional because its duration is “relatively modest and limited” and “neither excessive nor indefinite in nature.” But the mere fact that Petitioner’s detention will not be indefinite does not mean it comports with due process. Petitioner has already been detained for more than two months since the IJ determined she should be released. And she will continue to be detained until the BIA acts on DHS’s appeal or the appeal lapses. Even if the BIA ultimately upholds the IJ’s decision to release Petitioner on bond, DHS will have deprived Petitioner of her liberty for a significant period of time without any individualized or particularized showing that her continued detention is justified. As Petitioner argues, “the damage will already have been done.”
Finally, there is nothing in the record to suggest that imposing additional procedural requirements on DHS’s ability to keep Petitioner in custody pending its appeal of the IJ’s bond determination would impose any fiscal or administrative burden on the government.
The magistrate thus accepted the procedural due process claim, and recommended that Leqaa be released. Unfortunately, this ruling did not result in Leqaa’s immediate release. Less than a week later, DHS sought a discretionary stay from the Board of Immigration Appeals. The habeas corpus petition had focused on the denial of the process caused by the automatic stay mechanism, and the judge had accepted that argument. But now, DHS sought a discretionary stay, and less than 24 hours later, without giving Leqaa a chance to respond, the BIA granted it.
Since she was no longer detained pursuant to the automatic stay provision, but rather the discretionary stay provision, we asked the district judge to squarely address the other bases for release that we had previously asserted. But the district judge sent the case back to the magistrate, asking her to address those issues in the first instance. Meanwhile, in immigration court, the judge again ordered Leqaa free upon posting a $20,000 bond, and the government again sought and obtained a discretionary stay.
In early February, a frightening medical incident occurred. Leqaa fell in the shower and hit her head, and had a seizure. She was taken to a hospital 70 miles away, and DHS provided no information as to her whereabouts to her family or legal team. She was transferred back to detention 72 hours later, having been chained to her hospital bed most of the time.
More procedural wrangling occurred in federal court. But eventually, on March 16th, Leqaa was released from detention. The BIA had once again ordered the immigration judge to reconsider the amount of the bond, and this time she had set it at $100,000. A nonprofit paid it, Leqaa was free, and several days later she flew home to New Jersey. Her constitutional claims were never conclusively ruled on. She is still subject to deportation, although the question of what country the government could send her to is itself unsettled.
What was the point of all of this? For what reason was a woman imprisoned, in plainly unconstitutional conditions, for nearly a year — a woman who was never convicted, or even tried, for any crime? A woman whose only civil offense — again, not a crime — was to have mistakenly failed to renew her student visa, but who in any case was properly enrolled in a separate process toward legal residence status? A woman the government, try as it might, could never show was a “terrorist,” or a “Hamas supporter,” or a “harasser of Jews,” in the vile false words of a leading right-wing Jewish influencer?
The cruel, shameful treatment of Leqaa is of course the worst part of this sorry episode. But there is another concern as well. The government — which is to say we the taxpayers — paid somewhere around $65,000 to “house” Leqaa for the year. The money was paid to LaSalle Corrections, a private group of companies that runs Prarieland and other such facilities and prisons. According to its website, LaSalle “offers a diverse spectrum of corrections industry services to local state and federal law enforced agencies.” With respect to detention centers, it claims to provide “civilized, caring solutions for detainees,” and to “encourage an atmosphere of decency in a relaxed, yet controlled environment.” None of that was remotely true for Leqaa. At least she didn’t die in detention, as numerous other inmates at LaSalle facilities have.
While the government can still deport Leqaa, at least she can return to living at home, and caring for her asthmatic mother and autistic half-brother, while she awaits the outcome. And she can work and contribute to the economy, as she was of course doing before her detention. What purpose, then, was served by confining her for almost a year, at substantial cost to taxpayers?
The taxpayers also bore another cost. Government attorneys — both in the immigration courts and the U.S. Attorney’s Office in Dallas — spent hundreds of hours defending against every effort to have Leqaa freed. In that office, the attorney with primary responsibility for the case is a mid-career lawyer with nearly 20 years of experience, and so tens of thousands of salary dollars went toward his time. That does not include the other lawyers in the office who worked on the case, or paralegals and administrative staff, and so on. Nor does it include the lawyers and staff at “Main Justice” in Washington.
All of these people could have been working on other things — things that are actually important. DOJ’s website says that its mission is “to uphold the rule of law, to keep our country safe, and to protect civil rights.” Whatever one thinks of DOJ leadership at the moment, I can say from personal experience that this mission is failing for lack of lawyers. Thousands of lawyers at U.S. Attorney’s offices, or at Main Justice, have quit or been fired; the ones still working are stretched very thin. A few months ago a lawyer in another U.S. Attorney’s office told me that her office had four times its normal caseload, and half the normal number of lawyers to handle it. The inevitable result is that civil and criminal cases of all kinds are delayed, or not worked up as thoroughly, or settled on less favorable terms, or simply abandoned. Justice is not done.
Leqaa’s case alone is not responsible for this dismal state of affairs, of course. But there are thousands like it. And it is a fact that we paid hundreds of thousands of dollars to government lawyers and staff, who were already badly overworked, to work hard on this one case — for what? What interest of America has been served?
None that I can see. If DHS thinks it has deterred Leqaa or others like her or silenced her, DHS is wrong. Immediately upon her return to New Jersey, she gave a news conference, at which she described the conditions at Prairieland, and vowed to continue to advocate for Palestinian rights.
Leqaa’s treatment, at every step of the way, is a stain upon our legal system, and upon our country. Shame upon us.