BUFFALO, N.Y. (CN) – A long-time permanent resident fighting deportation to Jamaica was granted a bond hearing after spending the past five and a half years in immigration detention. A federal judge in Buffalo ordered the government to provide Errol Barrington Scarlett with a hearing within 60 days.
At the hearing, the government must convince an immigration judge that Scarlett poses a significant danger or flight risk to warrant detention.
“There is no evidence that Scarlett poses a threat to the community or a flight risk, yet the government has subjected Scarlett to years of mandatory detention while seeking to deport him based on a non-violent, decade-old drug possession offense for which he had already served his sentence,” the ACLU and NYCLU claim in their lawsuit challenging the detention.
They say Scarlett was denied a bond hearing to determine if the detention was even necessary. The government never gave him a hearing but only a string of “rubberstamp” custody reviews denying his release, the ACLU claims.
The civil liberty unions say Scarlett’s prolonged detention without a bond hearing is unconstitutional and violates the Immigration and Customs Enforcement Act.
Scarlett, originally from Jamaica, was convicted in 1999 of cocaine possession and served three years of a five-year sentence in a New York state prison. A year and a half after his release, he was summoned to the deportation unit in Manhattan and was immediately taken into custody, according to court papers. He was granted a stay of removal from a federal judge in Brooklyn.
Scarlett filed a writ of habeas corpus in federal court in Buffalo last year, after bouncing around detention facilities in Louisiana and Buffalo.
His lawyers argue that his five-and-a-half year detention was not authorized under law. They point to the U.S. Supreme Court’s 2003 decision in Demore v. Kim, where the justices upheld mandatory detention but noted that “not only does detention have a definite termination point, in the majority of cases it lasts less than 90 days.”
In a similar immigration case, the U.S. Court of Appeals for the 6th Circuit ruled that “the mere fact that an alien has sought relief from deportation does not authorize the INS to drag its heels indefinitely in making a decision. The entire process, not merely the original deportation hearing, is subject to the constitutional requirement of reasonability.”
Scarlett has lived in the United States for more than 30 years and has four kids and numerous siblings, all of whom are U.S. citizens.
“The court affirmed a basic constitutional principle: no one should be locked up for prolonged periods of time without a hearing to determine whether their detention is warranted,” said ACLU attorney Michael Tan. “We are relieved that after five and half years, Mr. Scarlett will finally get his day in court, but thousands of other legal residents are still detained for months or years without the most basic element of due process – a bond hearing to determine if their detention is even necessary.”
Scarlett is represented by Tan and Judy Rabinovitz of the ACLU, Arthur Eisenberg of the NYCLU and Lorrie Almon and Jeremi Chylinski of Seyfarth Shaw.
The Department of Homeland Security and Immigration and Customs Enforcement are named as defendants.