A Challenge to Mandatory Detention

The United States District Court, District of New Jersey ruled in the case of Garfield Gayle, Sheldon Francois, Neville Sukhu v. Janet Napolitano where the issue was whether individuals in removal proceedings are subject to mandatory detention. Mandatory detenetion is "detention without possibility of a bond hearing or any other determination of whether detention is justified based on danger or flight risk."

Plaintiffs were seeking the an order from the court that would prevent "the government from mandatorily detaining them without the opportunity for a fair hearing at which an Immigration Judge ascertains whether they have a substantial challenge to removal and are therefore eligible for an individualized bond hearing."

When the government charges individuals on grounds of removal as enumerated under 8 USC sec. 1226(c) - applying to non-citizens who are "deportable or inadmissible based on specific crimes, including various misdemeanors and minor drug offenses" - they are subjected to mandatory detention. The exception is if an individual can show a very high burden to an IJ that the government is "substantially unlikely to prevail on the charges against them." Mandatory detention can last for months and years.

The Court held that mandatory detention violated the "Due Process Clause of the Fifth Amendment..unless it is reasonably related to the purpose of ensuring availability for removal and protecting the community, and is accompanied by adequate procedural protection." The Court stated that the government had "inadequate hearing procedures violat[ing] the Due Process Clause of the Fifth Amendment and/or the Immigration and Nationality Act, and that [the government] must provide constitutionally-adequate hearings to Named Plaintiffs and proposed class members - ie, hearings that use the proper standard for when mandatory detention applies and to include adequate notice; place the initial burden on the government to establish prima facie deportability or inadmissibility on a ground that triggers mandatory detention; provide the opportunity for Named Plaintiffs and proposed class members to show that they have substantial challenges to removal and are thus not properly subject to mandatory detention; and provide a contemporaneous record of such proceedings."

For representation on immigration matters, please contact Glickman Turley LLP at 617-399-7770.

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, trademark law, probate matters including wills, powers of attorney, health care proxy, same-sex co-parent adoptions, guardianships, animal law, or LGBT legal matters.

Commonwealth v. Clarke: Invoking Your Right To Remain Silent By Conduct

The Massachusetts Supreme Judicial Court (SJC) held that nonverbal expressive conduct can suffice to invoke the right to remain silent.

In Commonwealth v. Clarke, the Massachusetts Bay Transportation Authority (MBTA) transit police arrested defendant Brandon M. Clarke for indecent assault and battery that had occurred at a train station. Clarke was taken to an interrogation room and informed that their conversation would be recorded. One of the officers explained verbally to Clarke his Miranda Rights and that he had a right to sign a written waiver of those rights.

When the officer asked whether Clarke wanted to speak, Clarke responded by shaking his head back and forth to show he did not want to speak. The other officer explained that because Clarke does not want to speak, he is still not free to leave because he would still be charged and would have to appear in court. At that point, Clarke made statements showing that he was confused and eventually waived his rights.

The SJC held that the defendant expressed in a nonverbal manner that he invoked his Fifth Amendment right to remain silent by shaking his head in a negative fashion. The police are required to "scrupulously honor" that right. The SJC concluded that "the detectives did not scrupulously honor the defendant's right to remain silent and thereby eliciting the incriminating response that is the subject of the defendant's motion to suppress, the motion judge was correct in concluding that the defendant's statements must be suppressed."

Glickman Turley's experienced attorneys represent individuals on a wide range of immigration matters, as well as other legal issues. Please contact our attorneys if you wish to discuss representation on immigration matters, real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil litigation, business litigation, business law, probate matters including wills, powers of attorney, health care proxy, same-sex parent adoptions, guardianships, animal law, or LGBT legal matters.