Jailed detainee may get bond

Federal judge sets a hearing for immigrant held since June

A federal judge has ordered immigration officials to hold a bond hearing for an immigrant who has been jailed since June while he challenges his deportation, in a ruling that could affect more than 50 other immigrants who are similarly detained across the state without the opportunity to petition for their release.

On Oct. 23, US District Court Judge Michael A. Ponsor ordered the hearing for Clayton Richard Gordon, a native of Jamaica and a Connecticut father. The move could open the door for a class-action lawsuit on behalf of immigrants held without the right to a bond hearing even though they might have a legitimate case against being deported.

In Gordon’s case, the 38-year-old man has been in jail for more than four months fighting deportation without a bond hearing, based on a 2008 drug offense for which he served less than a day in prison.

“The government subjects people to detention without the possibility of bond, even when they have for years been in the community and leading constructive lives that actually make them strong candidates for release,” said Adriana Lafaille, an Equal Justice Works legal fellow at the American Civil Liberties Union of Massachusetts, who handled the case.

She called Gordon’s incarceration “a perfect example of the drastic consequences” of immigration officials’ misinterpretation of detention laws.

On Friday, a bond hearing was scheduled for Wednesday in immigration court in Hartford.

Officials from Immigration and Customs Enforcement would not comment for this article, but have said that Gordon was subject to “mandatory detention” under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act because his 2008 drug offense was an aggravated felony, one factor that allowed for his automatic detention.

The incarceration of immigrants without offering them the opportunity to ask a judge to be released has been a key point in proposed overhauls of immigration laws, and it was a subject of a 2012 Boston Globe series that found Immigration and Customs Enforcement was secretly jailing tens of thousands of immigrants pending deportation proceedings, many of whom had never committed a crime.

The issue has also made its way into federal courts across the country. In California, a federal judge ruled earlier this year that immigrants could not be held indefinitely without a bond hearing pending lengthy deportation proceedings, and he set a standard of six months for a hearing to be held.

In New Jersey, advocates for immigrant rights have challenged the automatic, mandatory detention without opportunity for bond for immigrants who have a viable challenge to their deportation.

The ACLU has also filed a class action lawsuit in Washington state in a case similar to Gordon’s case in Massachusetts. It was filed on behalf of immigrants being held without the opportunity for bond while they fight deportation based on a crime committed months or even years earlier, even though the immigrant had been living freely without incident in the time since the crime occurred.

Federal immigration officials had unsuccessfully argued that they could arrest and detain someone without a bond hearing pending deportation proceedings at any time, regardless of when the crime occurred.

“The government’s position makes no sense – to subject to mandatory detention someone who has been living in the community for months and even years is a waste of taxpayer money,” said Judy Rabinovitz, deputy director of the ACLU Immigrants’ Rights Project in New York.

Gordon moved to the United States when he was 6. He has been a legal, permanent US resident for 30 years, and he is a US military veteran.

He was arrested in June while on the way to work and was held without the opportunity to see a judge pending his deportation proceedings, based on the 2008 drug offense. He served less than a day in prison for that offense and completed a three-year probation sentence.

His lawyers say he has been living a constructive life since then. He and his fiancée had a son and bought a house in Bloomfield, Conn. Gordon ran his own construction business and had begun a volunteer project to renovate a building into a halfway house for single mothers coming out of jail.

Kim Wierzchowski, 28, Gordon’s fiancé, said he had no idea that immigration agents were seeking his deportation until they arrested him in June, while he was on the way to work.

“This was something that happened five years ago. We went on with our lives, and this just came out of nowhere,” she said, adding that she has been struggling to pay for their recently bought home.

She said she was elated at the news Friday that a bond hearing will be held, saying Gordon was no danger and should be released while he challenges his deportation.

“It was me and him, and he was a wonderful father,” she said. “They tear these people’s families apart.”