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Immigrant's five years in detention without bail hearing under scrutiny

In July of 2011, Joseph Hechavarria pleaded guilty to an assault in Cheektowaga and was sentenced to three years in prison.

An immigrant from Jamaica, Hechavarria did his time in jail and, upon his release, was immediately arrested by immigration agents and sent to the Federal Detention Center in Batavia.

Five years and six months later, he's still there. And still waiting for a bail hearing.

"Each day a person spends in unconstitutional detention is an egregious wrong," Spencer Durland, one of Hechavarria's lawyers, told a federal judge last week. "We're asking the court to right that wrong."

Hechavarria, who came here legally in 1984, is not the first immigrant to endure prolonged imprisonment. Immigration lawyers will tell you it's a huge problem at Batavia – where another detainee was held for six years – and other detention centers.

But Hechavarria's years behind bars without a bail hearing are now prompting scrutiny by a federal judge.

In early November, U.S. District Judge Lawrence J. Vilardo pointed to Hechavarria's more than five years at Batavia and concluded his ongoing detention violated his Fifth Amendment right to due process.

Vilardo also ordered him released unless an immigration judge granted him a bail hearing and considered alternatives to detention and outright release.

Immigration Judge Philip J. Montante Jr. held a hearing and again found Hechavarria to be a danger to society. He also ordered him detained and eventually deported.

Hechavarria countered by going back to Vilardo and asking him to intervene.

Vilardo, during a court appearance last week, made it clear Montante's hearing was not a bail hearing, in part because the immigration judge never considered alternatives to detention.

At that point, he asked the government's lawyers to explain Hechavarria's more than five years in detention.

"Is your argument that if someone committed a violent crime and they're an immigrant, the government can detain them forever?" he asked.

The government did not directly answer and instead pointed to Hechavarria's appearances in immigration court and the numerous rulings requiring he be detained.

Prosecutors claim Montante did abide by Vilardo's court order but, in the end, decided again that Hechavarria should be held in custody.

Government lawyers also point to his assault conviction, as well as allegations of rape in that case, and note that the incident occurred while he was freed from detention while facing deportation.

Hechavarria came to the U.S. on a visitor visa and, after marrying a U.S. citizen, received conditional permanent resident status. Years later, immigration officials terminated his status and ordered him deported.

"While he was on release, he committed a violent assault," said Jesi J. Carlson, a lawyer with the Office of Immigration Litigation. "He had his opportunity before."

Vilardo acknowledged concern about Hechavarria's violent past but suggested the risk can be mitigated by conditions tied to his release, including the use of electronic ankle bracelets.

The judge reserved decision in the case but made it clear he is seriously considering Hechavarria's release with conditions.

"Five and a half years," the judge said of his extended detention.

"Sixty six months," added Durland, Hechavarria's attorney.

Hechavarria is not the first Batavia detainee to cast a spotlight on prolonged imprisonment at the facility.

Dominican Carlos Garcia waged a 10-year legal battle to win his release and realize his dream of becoming a U.S. citizen. In 2013, after spending six years at Batavia, Garcia won both his freedom and citizenship.

Like Hechavarria, Garcia had a criminal record, including a firearms conviction, and immigration officials spent years trying to deport him.

"This is the greatest country in the world," Garcia said after his victory. "It was a long struggle to secure my citizenship, but I never gave up hope."

Hechavarria wants Vilardo to intervene on his behalf, and his lawyers were quick to remind the judge of his previous order declaring Hechavarria's ongoing imprisonment to be a violation of his due process rights.

"Your release order stands," Durland said last week."It remains in effect."

The government wants Vilardo to reject Herchavarria's habeas corpus motion and, like Montante, find him a risk to society. They also want to keep him detained while his deportation case goes through the appeals courts.

"You have to look at what happened previously," Carlson, the government lawyer, said of the assault conviction.

One of the reasons Hechavarria is challenging his deportation is a long history of kidney disease – he received a transplant in 2008  – and a concern that he might not receive the medications and treatment he needs in Jamaica.

Hechavarria's request for release is bolstered by a federal appeals court ruling in 2016 that concluded the immigration courts may have erred in his deportation case and ordered his removal put on hold. His appeal is still under review.

Two years later, the same court, the 2nd Circuit Court of Appeals in Manhattan, took up Hechavarria's habeas corpus case and again sided with him. That led to Vilardo's appointment of a lawyer, Timothy W. Hoover of Buffalo, to represent him. Hoover then brought Durland onto the case.

Until then, Hechavarria, like Garcia before him, had been representing himself.

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