A recent Immigration and Customs Enforcement memo declaring millions of undocumented immigrants ineligible for bond hearings has left many Massachusetts immigration lawyers concerned that people with no criminal record will be sent to overcrowded detention facilities.
“If people can’t get out of detention on bond, it means people are looking at weeks, maybe months, maybe years where their human rights are being violated on a regular basis to stay in this country,” Sarah Sherman-Stokes, a professor of immigration law at Boston University, said.
While immigrants who have not committed a crime are typically released on bond as their cases wind through immigration court, the July 8 internal memo directs ICE officers to detain people who entered the country without permission for the duration of their deportation proceedings. The memo was first reported by The Washington Post.
ICE defended the recent directive in an email to the Globe on Thursday, saying it simply “closes a loophole to our nation’s security based on an inaccurate interpretation of [existing] statute.”
Immigration lawyers argued the new guidance is unprecedented and unconstitutional. It will create new challenges for both immigrants and their attorneys fighting deportation proceedings and place further pressure on New England’s already dangerously strained immigrant detention system, they said. Analysts said they expect the policy will be challenged in federal courts.
“If it sticks, it’s catastrophic,” immigration attorney Robin Nice said. “It’s hard to overemphasize how devastating it would be and just logistically problematic.”
ICE defended the legality of the directive, saying, “All aliens seeking to enter our country in an unlawful manner or for illicit purposes shall be treated equally under the law, while still receiving due process.”
The ICE guidance looks to expand a 1996 law that subjected people convicted of certain crimes to mandatory detention.
But, Sherman-Stokes argued, “ICE is acting like that applies to anyone who is undocumented, and that just flies in the face of precedent decisions over the last 30 years.”
Sherman-Stokes and others noted that people who entered the country without permission may have legal grounds to stay here, for instance if they are seeking asylum. The advocates expressed concern that the changes will violate undocumented immigrants’ rights to due process; the question of bond is supposed to be left to the discretion of judges.
Alexandra Peredo Carroll, the director of legal education and advocacy at the Mabel Center for Immigrant Justice, said the policies are “cruel.”
“Their only purpose is to deprive people of due process,” she added.
In addition to denying people bond hearings, the guidance will make it harder for detained individuals to gather their documents and communicate with their attorneys to prepare arguments for relief from deportation, like asylum claims, according to immigration lawyers.
Some immigrants will not pursue what would be strong cases for relief due to the psychological toll of detainment, especially those with no criminal history or prior experience with law enforcement, Peredo Carroll said.
“Putting someone in detention, what that does to them psychologically, physically, can be torturous,” she added.
“This is just a way to basically deprive folks of the ability to apply for relief that our system is currently set up to provide.”
Immigration lawyers said they worry for clients who they didn’t consider likely to be detained before: people with no criminal record, who are following the steps to defend themselves through deportation proceedings.
“It’s very scary for a lot of immigrants who are trying to do things the right way,” Annery Miranda, an immigration attorney for Greater Boston Legal Services, said.
Massachusetts immigration lawyers said the region’s ICE facilities cannot absorb scores of new detainees, which raises the question of whether they will be sent to larger facilities around the country, like “Alligator Alcatraz,” the sprawling new Florida detention center accused of crowding and unsanitary conditions.
There are only two ICE facilities in Massachusetts: a men’s detention center in Plymouth County Correctional Facility, where researchers have alleged decades of abuse, and a holding center in Burlington.
The Burlington facility is meant for short-term stays of up to 12 hours, but immigrants who have been detained there allege that they were kept for days in crowded cells, sleeping on concrete floors and unable to shower.
Luis, a 25 year-old immigrant from El Salvador, knows what it’s like to be held without bond, and have no immediate avenue to seek relief. He spent two days in the Burlington facility after he was detained by several officers — some of whom wore masks, dark glasses, and baseball hats — on his way to his friend’s house in May.
He spent the night in a cell with more than 50 other men before he was transported to Plymouth, where he spent 19 days before he was released on due process grounds while his case is pending.
“I’ve never committed a crime, I have always tried to behave well, do things right, pay my taxes, not get into problems,” Luis told the Globe in a phone interview in Spanish on Wednesday. He asked that he be identified by only his first name so that he does not face retaliation by immigration authorities.
He crossed the southern border without permission when he was 16 to flee gang violence in his native country. He now lives with his father and helps to run a family business.
Luis said he is constantly looking over his shoulder and is afraid to walk on the streets since his release from Plymouth.
ICE’s new restrictions on bond hearings have made him “very afraid” of being arrested again.
“If they don’t let me out on bail, I can’t fight the case anymore, so they’re going to deport me after so many years of doing everything right with the law,” he said.
Jade Lozada can be reached at jade.lozada@globe.com.