The Department of Homeland Security’s use of a post 9/11 administrative rule to detain sex offenders is pushing cases through the court systems. 

The “automatic stay” rule was originally written immediately following September 11 to allow the government to detain Muslims suspected of having ties to al-Qaeda.  The present implementation of the regulation has allowed the government to detain a number of men whose offenses were minor, whose convictions were served years ago and who have lived law-abiding lives in the meantime.

“Operation Predator” is the DHS’ program that automatically jails immigrants convicted of sex crimes before removal.  A large number of arrests have put illegal and legal immigrants in jail for extended periods of time.

The “automatic stay” rule is activated when an attorney at the Bureau of Immigration and Customs Enforcement checks the applicable box on an intake form.  In Operation Predator cases, the box is automatically checked. 

The litigation stems from the fact that federal agents are forcing people to serve extensive jail terms because of the checked box. With the box checked, the DHS is able to implement the regulation by ignoring bond decisions and release orders by immigration judges and the BIA.  The immigrants are detained at the attorney general’s discretion.

While the cases have been decided for both sides, all the judges involved have moved past the portion of the statute that authorizes the detention rule.  8 USC 1226 states: “The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.”  Some of the judges have stated that they are not reviewing the decisions but the constitutionality of the process.

Some of the cases, especially those involving statutory rape, may stem from cultural differences regarding the age when women can marry and bear children.  In one case, a native of El Salvador was arrested for having a consensual sexual relationship with a 15-year-old girl when he was 28 years of age.  He only served two years probation, with a psychiatrist noting that in his culture, it was not uncommon for girls to be married at age 14.

None of the cases has made it to the Appellate level yet, but both sides are pushing for a final determination of the issue.