A lawyer is sounding the alarm on a “crazy loophole” in a law that allows judges to keep migrants jailed while other judges have ruled the law shouldn’t apply.
“This is not a procedural quirk. It is a betrayal of the foundational promise of American law: that the rules apply equally to everyone,” lawyer Alexander Urbelis wrotefor Slate on Tuesday. “That is not justice. That is a lottery.”
Urbelis described two incidents in which he represented a migrant detained by Immigration and Customs Enforcement. One was about to get out of jail in four days because Urbelis got him in front of a judge who had already ruled against a legal question of whether ICE can detain someone under a statute that “Congress never intended to apply to people already living in the United States,” Urbelis wrote.
But another one of his clients is still detained after 11 weeks. That client was detained in the same Orange County jail and was tried in the same courthouse. The only difference, per Urbelis, was the judge; the second client was stuck with one who found that the aforementioned statute does indeed apply.
“Equal protection. Due process. The principle that the government cannot take your liberty without first showing cause and giving you a chance to be heard,” Urbelis stressed. “They are the floor beneath which a constitutional democracy does not sink. When the government treats them as optional, it is telling you that equality under the law is a performance.”
Urbelis said that the “crazy loophole” can be fixed with a “single decision from the U.S. Court of Appeals for the 2nd Circuit” and argued that “the Department of Justice is not a private law firm. Its lawyers do not represent a client seeking to maximize wins.”
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