ORLANDO, Fla. — Javier Gimenez Rivero’s walk out of the federal courthouse in Orlando and into the waiting arms of his family represented a banner moment for his attorney, Phillip Arroyo.
The reunification, captured by Arroyo’s team on video, had been days in the making. Rivero was pulled over on Landstreet Boulevard for driving 54 in a 45 mile-per-hour zone. A common enough occurrence in Central Florida, where speed limits are often treated more as suggestions than rules.
Rivero was arrested for being undocumented. Arroyo, in court filings, explained that the 20-year-old had been brought across the US border as a child and had applied for asylum. The case is still pending.
It didn’t matter to the Trump Administration, which had recently begun enforcing a policy that undocumented immigrants are not eligible for a bond hearing. Prosecutors argued Rivero should be kept in jail until his transfer to a Miami federal detention facility, usually the last stop in Florida before someone is deported.
In a scathing ruling this week, Middle District Judge Roy Dalton put a stop to that – and bashed prosecutors in the process.
“We don’t enforce the law by breaking the law,” Dalton, who was appointed by President Obama in 2010 and unanimously confirmed by the Senate, wrote. “There is no ambiguity here… the Government is wrong.”
Bond battle
The battle over bonds began in September with a decision known as Matter of Yajure Hurtado. In its decision, the Board of Immigration – controlled by the executive branch – determined that anyone who crossed the border illegally and was later detained was not eligible for bond.
This contradicted longstanding government practice, and – as numerous federal judges have since pointed out – the law itself.
Dalton’s ruling explained what was happening. The government was using one section of the law, which applies to people actively crossing the border and says they’re not eligible for bond, and expanded its use to mean anyone who had crossed, even if they’d been in the United States for years.
However, the very next section of the law pertains to the detention of noncitizens who were already present in the United States. The section outlines conditions for undocumented immigrants to seek a $1,500 bond while remaining in the United States while their cases play out.
The effect of Hurtado was that immigration judges – also under the executive branch – were unwilling to give detainees a bond hearing, much less set one.
Therefore, lawyers turned to the judicial branch, where federal courts have agreed to grant bond in one case after the next while scolding the government for its new set of rules.
“I filed the most Habeas petitions in my life in 18 years of practice, in the past two or three months,” Frank Symphorien-Saavedra
Arroyo, who got a second client released from custody Wednesday, said he had more lined up.
The lawyers are waiting for a California case, where a judge decided immigrants as a class are supposed to get bond as of December.
Symphorien said the case did not give the judge a way to hold the government to their decision, and the petition would have to be amended.
If the judicial branch brings the executive branch back into line, it could have big implications for immigrants across the country. Symphorien said approximately 40% of cases – millions -- were like Rivero’s, where people were pulled over or otherwise found their way into custody with no criminal record and no record of ICE trying to deport them.
In Rivero’s case, Dalton wrote ICE filed a Notice of Removal days after his arrest.
Symphorien said he was hopeful for his clients, but given the amount of judicial orders immigration authorities are ignoring, he wasn’t getting ahead of himself.
“If this is stopped, they’ll look for another statute to authorize what they’re doing,” he said. “I’m not naive.”
Prosecutors, meanwhile, declined to say whether they’d change tactics in light of Dalton’s ruling, which threatened to sanction the US Attorney over the Middle District for sending “sacrificial lambs” to argue a point that judges have rejected again and again.
Dalton was also furious that the prosecutors did not mention evidence to counter their arguments – which is standard in federal court – during their time in front of him.
“They are here simply to make the point that the Government is asking the Court to make a ruling totally devoid of context, as if we live in a fantasy world where hundreds of other judicial orders do not exist,” he said.
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