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Bond Hearings Ordered|for Long ICE Holds

PASADENA, Calif. (CN) - The Ninth Circuit on Wednesday upheld a federal judge's order requiring immigration authorities to provide bond hearings for immigrants in prolonged detention.

The three-judge panel also held that immigration judges must consider the length of the detentions and provide bond hearings every six months for immigrants detained longer than a year, an issue the Circuit had not previously addressed.

In 2010, a class led by the American Civil Liberties Union of Southern California challenged the indefinite detention of noncitizens who are potentially deportable due to criminal history, or are applicants for admission who were picked up at the border.

Lead plaintiff Alejandro Rodriguez came to the United States as an infant and has been a legal permanent resident since - as have his parents, siblings and three young children. But after his 2003 drug possession conviction, he was ordered removed and detained for more than three years.

The plaintiffs claimed that such detention - without review by a "neutral arbiter" - was unconstitutional and a federal judge agreed, issuing an injunction in September 2012 requiring the government to identify all class members being detained under the challenged rules and to "provide each of them with a bond hearing before an immigration judge with power to grant their release."

In April 2013, the Ninth Circuit affirmed the injunction and Wednesday affirmed it again, although reversing it with respect to one proposed subclass.

The class at issue is defined as "all noncitizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified."

According to the panel's opinion, the class members spend an average of 404 days in immigration detention and are "treated much like criminals serving time."

The government appealed the injunction, arguing that the district court and the circuit "erred in applying the canon of constitutional avoidance to each of the statutes at issue."

But the panel reaffirmed the court's order "insofar as it requires automatic bond hearings and requires immigration judges to consider alternatives to detention because we presume, like the district court, that immigration judges are already doing so when determining whether to release a noncitizen on bond."

"Because the same constitutional concerns arise when detention approaches another prolonged period, we hold that immigration judges must provide bond hearings periodically at six-month intervals for class members detained for 12 months," said Circuit Judge Kim Wardlaw, writing for the three-judge panel.

She said that "while the government falsely equates the bond hearing requirement to mandated release from detention," precedent makes clear that there is a distinction "between detention being authorized and being necessary as to any particular person."

But the circuit reversed the court's injunction with respect to a subclass of noncitizens who are detained "pending completion of removal proceedings, including judicial review," finding that such a subclass "does not exist."

The panel also declined the class' suggestion to mandate additional procedural requirements, such as judges' consideration of likelihood of future removal, which "would require legal and political analyses beyond what would otherwise be considered at a bond hearing."

Wardlaw said that by upholding the injunction, the circuit is not ordering immigration judges to release any single individual.

"Rather we are affirming a minimal procedural safeguard - a hearing at which the government bears only an intermediate burden of proof in demonstrating danger to the community or risk of flight - to ensure that after a lengthy period of detention, the government continues to have a legitimate interest in the further deprivation of an individual's liberty," she said.

The panel remanded to the district court to enter a revised injunction consistent with its instructions.

Neither side immediately responded to request for comment on Wednesday morning.

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