9th Circuit Rejects Prolonged Immigrant Detention Without Hearing

The 9th Circuit issued an important decision this week in Diouf v. Napolitano (opinion here) concerning prolonged detention of immigrants.

In a unanimous decision, the 9th Circuit Court of Appeals held that a person who has been subjected to prolonged immigration detention is entitled to release unless the government can show that he poses a risk of flight or a danger to the community at a bond hearing before an immigration judge.

The Constitution guarantees every person, whether here lawfully or not, a day in court. The ACLU says: [More...]

The government's increasing use of detention as an immigration enforcement strategy means that, on any given day, thousands of immigrants, including green card holders and asylum seekers, are detained for prolonged periods of time without a hearing.

The detention of people who pose no danger or flight risk not only violates the law, but is bad policy. The government currently spends millions locking up people whose detention serves no purpose, squandering taxpayer dollars in a time of fiscal austerity. Prolonged immigration detention is also cruel and unfair. Individuals are routinely held in far-flung detention centers that are hundreds of miles away from their attorneys and family members. Their detention for months or years makes it nearly impossible for them to fight their case — even when they have legitimate claims for legal status in the United States.

The ACLU also has a message for the Obama administration:

The Obama administration should use Monday's court decision as an opportunity to revisit its national immigration detention policy and bring it into compliance with current law and the Constitution.

The The ACLU represented Amadou Diouf, along with the ACLU of Southern California and the Stanford Law School Immigrants' Rights Clinic, says:

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    They got Judge Bybee's sign-on (none / 0) (#1)
    by andgarden on Wed Mar 09, 2011 at 06:13:18 PM EST

    Very good! (none / 0) (#4)
    by ruffian on Wed Mar 09, 2011 at 06:43:24 PM EST
    Will/can the government appeal?

    The government can seek rehearing (5.00 / 1) (#6)
    by Peter G on Wed Mar 09, 2011 at 08:15:25 PM EST
    by a larger number of judges of the same court, but with the ultra-conservative Bybee on board, that might not fly.  However, the 9th Cir does grant rehearing of its appeals more often than most of the circuits.  The government could also petition the Supreme Court for a second appeal ("certiorari").  Whether they would or not go that far raises both policy and legal questions that are over my pay grade just now.  I do know, however, that this same issue was just argued two weeks ago in the Third Circuit (I participated in the moot court for the ACLU), so the govt may wait for the issue to "percolate" in more parts of the country, and then pick the case with the facts most favorable to their position to bring before the Supremes. The govt may feel they have to pursue the case, because the immigration statute pretty clearly states that release from detention is not allowed; the ACLU has to win these cases on constitutional grounds that override the statutory limitation.

    Gop passion for Constitution prompts full-newty.


    so speed up the hearings (none / 0) (#7)
    by diogenes on Wed Mar 09, 2011 at 09:56:55 PM EST
    Releasing people who are allegedly in the country illegally in the magical hope that they will show up for a deportation hearing is naive.  Why not add many judges and speed up the hearing process.

    Are you asking the government... (5.00 / 1) (#9)
    by kdog on Thu Mar 10, 2011 at 08:07:51 AM EST
    to increase spending?  You're gonna lose your conservative street cred doing that Dio:)

    Oh wait, silly me...ya can't spend enough in tyranny sector, it is humanitarian spending that is the scourge.


    Actually (none / 0) (#10)
    by Rojas on Thu Mar 10, 2011 at 09:10:43 AM EST
    Most of the people in county jails (at least in Texas) are there on pre-trail detention. They can't afford bond and they can't afford a lawyer. I believe the number is over 65% in Sabine County (Houston).
    Of course this is breaking the bank not to mention that the situation is clearly unconstitutional to anyone but the three monkees (the hear, speak, see no evil DOJ) who the reactionaries intallad in place of lady liberty a few decades ago.

    So conservatives are or will be dealing with these isssues. Norquest, at this point seems willing to drown a little of the tyranny sector along with the rest.


    Hope so... (none / 0) (#11)
    by kdog on Thu Mar 10, 2011 at 09:18:42 AM EST
    the silver lining to teetering on bankruptcy is less money to spend in the tyranny sector...or so you would think.  The authoritarians always seem to find the cash for the dirty though...crying poverty when time to spend on something noble.

    Quit Making It Up (none / 0) (#12)
    by ScottW714 on Thu Mar 10, 2011 at 09:35:11 AM EST
    I agree with most of your post, but 65%, prove it.

    Sabine County is not a county anywhere near Houston, south of Beaumont, bordering Louisiana, and not exactly a populated county with 10,000 residents.

    I have been to court in Houston, it's a fricken zoo, literally thousands going through the courts each day.  There is no way in hell 65% of the people passing through the courts are in detention, it would be thousands of new detainees a day, no way, no how.  I would be shocked if 5% were being detained.


    Damn Yankee (none / 0) (#13)
    by Rojas on Thu Mar 10, 2011 at 01:13:58 PM EST
    A clue for you.
    If you are interested in what is going on in the Texas justice/injustice system you should be following another Scott over at Grits for Breakfast. It's kinda like Texas centric view of what used to go on at TalkLeft before it was overun.

    Houston is Harris county and I didn't say 65% of the people passing through the courts are in detention. I said "I believe 65% of the county jail population is pretrial"

    Yet 58 percent of the county's 9,700 current jail inmates remain "pretrial," the week's statistics show. Among them are disabled adults, teenagers, the mentally ill, substance abusers and first-time offenders who often get mixed in with hard-core felons.

    The grits link



    UH, Houston is Harris County. (none / 0) (#14)
    by Chuck0 on Fri Mar 11, 2011 at 11:00:59 AM EST
    Sabine is somewhat north and east of Houston.

    The Supreme Court has required (none / 0) (#8)
    by andgarden on Wed Mar 09, 2011 at 10:15:29 PM EST
    that individuals being deported are allowed to, at a minimum, appeal legal issues in Federal court.

    We went through this before with "streamlining."

    So unless you're going to split the circuits and expand the Federal bench (allowing Obama to make many new appointments), what you propose likely isn't a remedy.