ACLU Charges Feds Have Illegally Detained Immigrant in Wisconsin

U.S. Immigration and Customs Enforcement. (Public Domain).

For the past six months, the federal government has held Jaciel Cirrus Rojas in immigration detention despite a judge granting his release on bond in July.

Attorneys with the American Civil Liberties Union of Wisconsin (ACLU) say the government is illegally detaining Cirrus Rojas, who is being held in Dodge County Jail, which the federal government uses to detain immigrants in Wisconsin.

As best as ACLU attorneys can tell, Cirrus Rojas was arrested in June during an Immigration and Customs Enforcement (ICE) operation that was actually targeting someone else. A native of Mexico, he has lived in the U.S. since 2018 and has no criminal history.

An immigration judge granted his release on a bond — the statutory minimum of $1,500 — in July. But the U.S. Department of Homeland Security (DHS) appealed his release, relying on an interpretation of federal immigration law that treats immigrants living in the interior of the country the same as immigrants detained while crossing the border, according a legal filing by the ACLU. In October, the Board of Immigration Appeals (BIA) has since vacated the order granting bond. A petition for a writ of habeus corpus in federal court, challenging the legality of his detention, was similarly denied shortly after.

His case is another example of the shifting legal tactics being used to carry out the Trump Administration’s mass deportation policy.

When DHS appealed Cirrus Rojas’ bond, his release was paused, casting him into legal limbo. He has been detained now for more than 200 days. He has had no contact with his family, including his wife and one-year-old daughter, who was six months old at the time of his arrest. He has a pending asylum claim under a law protecting persons who may be tortured if they are deported to their home country. As he sits in detention, a hearing for his asylum claim has been rescheduled and ACLU attorneys continue to work for his release.

On Dec. 9, ACLU Attorney Jennifer M. Bizzotto filed an emergency motion in the Seventh Circuit Court of Appeals asking the court to overturn previous judicial rulings that have denied his release. She argued that the federal government is not only violating his due process rights and holding him in unlawful detention, but denying Cirrus Rojas the ability to prepare his asylum claim.

“We have seen hundreds of cases nationwide in which federal judges have ruled that ICE cannot hold people in Cirrus Rojas’s position without bond hearings, but that has not deterred ICE from continuing to lock up people while flagrantly violating the law,” said ACLU of Wisconsin Staff Attorney Hannah Schwarz.

On Sept. 17, Cirrus Rojas petitioned the U.S. District Court for Eastern Wisconsin seeking release from detention. The ACLU argued that Cirrus Rojas detention is illegal and violates the due process clause and the Immigration and National Act. The federal government is misapplying immigration law, the petition contended, and breaking from longstanding policies for immigration enforcement that treat immigrants arrested at the border differently than immigrants arrested inside the country, with the latter being eligible for bond.

In legal filings, DHS attorneys have acknowledged that the agency has begun treating immigrants without legal status living in the interior of the country the same way they treat immigrants arrested at the border. The federal government is arguing that it treats them the same because, in both cases, the immigrant has not been “admitted” to the country. Therefore, anyone not legally admitted is subject to mandatory detention.

On Oct. 30, U.S. District Court Judge Brett Ludwig issued an order denying the relief Cirrus Rojas sought. Ludwig said legal issues at question were “complex and interrelated” and that the Immigration and Nationality Act “is a complicated statute that has been amended multiple times since being enacted in 1952.” Ludwig ultimately sided with the federal government, saying DHS has “the better of the statutory argument.”

In the emergency motion before the Seventh Circuit, Bizzotto argued this is the only instance when a court has upheld such a decision on detention “among at least thirty cases” across the circuit, which includes federal district courts in Wisconsin, Illinois and Indiana.

A class action lawsuit was brought against DHS in California, arguing the federal government is violating federal law and the Due Process Clause of the 14th Amendment of the U.S. Constitution with the new mandatory detention policy. In November a federal court sided with the defendants. Bizzotto argued that Cirrus Rojas is a member of this class and should be afforded the same relief: bond and release.

There is a significant public interest in the government following its own laws, one that supersedes public interest in “strong enforcement” of immigration laws, Bizzoto argued. “Granting this motion is precisely the remedy necessary to ensure that the government abides by its duty to follow the law.”