2 Investigates: federal law allows ICE to detain immigrants indefinitely

A federal law allows for the government to detain undocumented immigrants indefinitely but a recent spate of rulings by judges in the 9th circuit shows some leniency in the wake of this controversial decision, 2 Investigates has learned. 

In February, the Supreme Court ruled immigration courts are not required to grant detainees periodic bail hearings, as they did before under a lower court's ruling. The decision came as a victory for Immigration and Customs Enforcement. ICE Director Thomas Homan said he was "incredibly pleased" and "This decision clarifies detention authorities."

Whether or not the law is constitutional has yet to be decided by the Supreme Court. With one justice abstained, the justices tied 4-4. The issue was sent back to the 9th Circuit Court of Appeals and a final decision has not yet been issued.

"I don't think it's Constitutional to have indefinite detention without a hearing to determine if a person is a danger or a flight risk," said Erwin Chemerinsky, dean at Berkeley Law and a constitutional law scholar. "The United States Government has broad power over immigration."

According to ICE, on any given day, there are around 40,000 detainees in 112 detention facilities nationwide. Over the course of a entire year, ICE booked more than 350,000 in 2016 and more than 320,000 in 2017.

Ricardo Mercado Guillen, who is undocumented, was detained by ICE for more than nine months. In July 2017 officers arrested him in front of his East Oakland home while his wife and children were inside. Mercado had one DUI in 2006 where he had three beers and was ordered previously to leave the country. While detained, Mercado’s bail hearing was twice postponed. His wife spent more than $10,000 in legal fees before a judge said her husband was eligible for $5,000 bond on Wednesday. 

During that hearing, Mercado smiled via video-teleconference from jail. Through the video, he waved at his namesake, Ricky Jr., who shouted, "Hi Papi!" from the public section of the small courtroom. 
Perez has since paid the bail for her husband, and Mercado has been reunited with his family, including his 2-year-old son and daughters. 

"I'm so happy," Lilia Perez, Mercado’s wife, said outside court. "I haven't even told the girls yet. I wanted to keep it a surprise."

Some legal experts, including Mercado’s attorney Kevin Crabree, do not believe holding someone indefinitely will hold up legally upon further review. And they point to little wiggle room in the ruling, which was sent back to the 9th Circuit Court of Appeals in San Francisco to answer two unresolved questions: First, whether indefinite detention without a chance for bail is constitutional. Second, whether the challenge to the no-bail provision can be brought as a class action, instead of as individual cases.

Since the Supreme Court ruling, however, some judges in the 9th Circuit have ruled the decision does not have to be interpreted in the harshest manner. 

The first example was on March 13, when a federal judge in San Francisco ruled that Floricel Liborio Ramos, who also filed a similar writ, should be released from detention under appropriate supervision conditions as she awaits her final deportation hearing. The judge in that case said that the Supreme Court did not rule that detainees must be held without the chance for a bond hearing, the justices ruled that they may be held. And so that judge ruled in a more progressive fashion. Then, on March 30, an immigration judge ruled that Fernando Carillo of San Jose can stay in the United States after he proved it wouldn’t be safe to return to his native Mexico. The Department of Justice, however, is appealing this decision.

San Francisco-based Pangea immigrant rights attorney Jehan Laner Romero explained that the district court judges within the 9th Circuit, are unique with their recent detainee rulings, as a legal precedent in this circuit allowed for more lenient interpretations. Lower court immigration judges across the country, she said, are mostly interpreting the case more conservatively, ruling that detainees in several categories should be denied these bond hearings.

On Wednesday after the hearing, Crabtree acknowledged that Mercado's release is "one of a very few."

KTVU's Lisa Fernandez contributed to this report.