ACLU of Nebraska files fourth lawsuit as battle over immigration detention continues

The ACLU of Nebraska is headed back to federal court for a fourth lawsuit over immigration detention.

The lawsuit was filed Monday on behalf of Carlos Chang, a Guatemalan man who has lived in the U.S. since 2005. He was living in Des Moines, Iowa, when he was taken into federal custody in December. He is now being held at the state-run federal immigration detention center in McCook, Nebraska.

“At its most basic level, this is about ensuring the rule of law and protecting a fundamental right,” ACLU attorney Grant Friedman said in a statement. “Officials have an obligation to follow court orders, and our client has a right to make his case and to receive an individual custody determination as has been the usual practice for decades.”

Though this is the fourth such lawsuit brought by the ACLU of Nebraska, 30 similar lawsuits have been brought in the District of Nebraska since last Summer. All five of Nebraska’s federal district court judges have presided over these cases, and most have resulted in the petitioner’s release from custody after a judge found their detention unconstitutional.

But some people in nearly identical circumstances to those freed remain behind bars after different judges sided with Immigration and Customs Enforcement and the Department of Homeland Security.

For decades, ICE and DHS differentiated between “arriving aliens,” or people who were encountered as they crossed the border or very shortly after arriving in the U.S., and undocumented immigrants who were encountered after residing in the U.S. for more than two years. While “arriving aliens” are subject to mandatory detention, other immigration detainees have historically been eligible for a bond determination hearing in front of an immigration judge.

Interim guidance issued by ICE last year said the agency had “revised its legal position on detention and release authorities” and categorized every undocumented immigrant as an “arriving alien.” The Board of Immigration Appeals, or BIA, agreed with ICE in a decision last fall that has led to a drastic expansion of mandatory detention.

In the three previous lawsuits filed by the ACLU of Nebraska, the petitioners appeared in front of an immigration judge and were granted bond. But when family members or advocacy organizations went to pay the bond, they were not able to do so. In each of those cases, a judge ordered ICE to accept the bond and release the petitioners.

Chang was denied the opportunity for a bond hearing because of the BIA decision. In at least one similar Nebraska case, a judge has ruled that the petitioner is entitled to a bond hearing.