On January 27, 1988, two detained aliens filed a petition for a writ of habeas corpus and class action complaint in the U.S. District Court for the Southern District of Texas, challenging the federal government's practice of detaining them and other similarly situated aliens as material witnesses for the criminal prosecution of those persons charged with transporting them across the border. Plaintiffs claimed that their continued detention violated their constitutional rights. The plaintiffs sought class certification and an injunction barring the government from detaining alien-witnesses for longer than ten days where a deposition would adequately preserve the criminal defendant's right to confrontation under the Sixth Amendment.

The petitioners had been arrested in Falfurrias, Texas, on November 14, 1987, shortly after they entered this country illegally. They were allegedly detained as material witnesses in connection with the criminal prosecutions of their smugglers. The petitioners objected to their detention and the Justice Department was ordered to depose them or release them from custody. Before they were released, their custody was transferred to the INS for deportation proceedings. Plaintiffs then filed this action. Shortly thereafter, they were released from custody, but they continued the lawsuit.

The government moved to dismiss the case, maintaining that the aliens had been detained for deportation under Immigration and Nationality Act and not as material witnesses.

The District Court did not rule on the government's motion. Instead, on July 15, 1988, the District Court entered an order in the case, which was adopted as a standing order governing the handling of all material witnesses in the Brownsville Division of the Southern District of Texas. The order was patterned after the one entered in In re Class Action Application for Habeas Corpus ex rel. All Material Witnesses in the Western District of Texas, 612 F.Supp. 940 (W.D.Tex.1985) [IM-TX-26] and set procedures including: (1) that the witness, government, or criminal defendant could move to depose a material witness; (2) that the deposition would be taken within 10 days of a magistrate's order to do so; (3) that a detention order by a magistrate be reviewable by a district court and (4) that the witness be released after 45 days absent a district court ruling that further detention is necessary.

Following that order, plaintiffs moved for an award if attorney fees. The District Court denied the request and plaintiffs appealed. The Firth Circuit Court of Appeals affirmed. Aguilar-Ayala v. Ruiz, 973 F.2d 411 (5th Cir. 1988).