Employers in West Virginia may face a situation where their employees who are immigrants are arrested and detained by immigration officials. Two new opinions from the United States District Court for the Southern District of West Virginia makes clear that all persons are entitled to due process when arrested and detained.
In Gonzalez v. Mason and Flores v. Mason, both issued on January 28, 2026, the court granted petitions for habeas corpus and ordered the release of two individuals who had been arrested and detained without a hearing by Immigration and Customs Enforcement officers. The opinions make these important points:
- The Due Process clauses of the United States Constitution apply to all “persons” including illegal immigrants.
- District courts have jurisdiction to determine if a person has been arrested and detained lawfully, whether the detention is civil (based on immigration law) or criminal (based on a crime committed by the detained person).
- All persons arrested and detained by Immigration and Customs Enforcement are entitled to a prompt hearing before a neutral officer. “[T]he government may not confine a person in a jail without promptly justifying that confinement before a neutral decisionmaker in a manner the person can meaningfully access.”
- The government has the burden to prove that an arrest and detention are lawful.
The District Court found in both cases that the government failed to provide the detainees with a prompt hearing or prove that their arrests and detention were lawful. As a result, the court ordered both detainees released and prohibited their re-arrest absent a change in circumstance or order from an immigration judge.
The court expressly recognized that its order addressed an issue that is ongoing in other parts of the country and carefully pointed out that its decision relates only to the requirement of due process for a lawful detention, and not to the underlying immigration issues. The opinion in Gonzalez v. Mason is posted on the court’s website and can be accessed through this link. https://www.wvsd.uscourts.gov/sites/wvsd/files/opinions/2-26-cv-49%20Memo%20Opinion.pdf.
The circumstances surrounding detention will vary, and the individual situations can be nuanced. Jackson Kelly continues to monitor developments. For questions regarding any specific employees, please contact us.