Immigrants in Lengthy Holds Win Bond Hearings

     (CN) – Immigration authorities must provide bond hearings for immigrants and asylum-seekers detained for at least six months, the 9th Circuit ruled Tuesday.
     In 2010, a class led by the American Civil Liberties Union of Southern California had challenged the indefinite holding of noncitizens who are potentially deportable because of criminal history, or are applicants for admission who were picked up at the border or a port of entry.
     Lead plaintiffs Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdikadir and Abel Perez Ruelas have since been released, deported or won their cases, ACLU attorney Ahilan Arulanantham said.
     Rodriguez had been brought to the U.S. from Mexico when he was a child and was detained for three years without a hearing. Abdrirzak Aden Farah, a Somali refugee, was detained for more than eight months without a hearing. Yussuf Abdikadir, also Somali, was held for about six months, according to the group’s third amended complaint. Mexican national Jose Farias Cornejo, a lawful permanent resident who has lived in the U.S. all his life, spent months in lockup beyond his 180-day sentence for a drug conviction.
     The plaintiffs claimed that such indefinite detention, as justified under two federal immigration statutes, was unconstitutional because they were offered no review by a “neutral arbiter.”
     U.S. District Judge Terry Hatter agreed last September, issuing an injunction in Los Angeles that required the government to identify all the class members who were 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.”
     A three-judge panel of the 9th Circuit affirmed Tuesday, rejecting claims that the hearings could deplete federal resources and lead to the release of criminals.
     There have been about 400 hearings since last November, and about two-thirds have resulted in release, according to the ruling.
     “Contrary to the government’s rhetoric, this injunction will not flood our streets with fearsome criminals seeking to escape the force of American immigration law,” Judge Kim McLane Wardlaw wrote for the Pasadena-based panel. “The district court’s narrowly tailored order provides individuals, whose right to be present in the United States remains to be decided, a hearing where a neutral decision-maker can determine whether they might deserve conditional release from the prison-like setting where they might otherwise languish for months or years on end. These hearings simply ensure that ‘the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.'”
     Arulanantham, the ACLU attorney who argued the case, said he hopes the Obama administration will take the 9th Circuit’s lead and adopt a policy allowing for such hearings.
     “The government’s position is extremely Draconian,” he said.
     He added that refugees and immigrants convicted of minor crimes should be afforded the same basic hearings as others in detention.
     “The government has said throughout this litigation that they don’t trust their own judges,” he said.
     On any given day there are about 300 people being held in similar circumstances in Los Angeles and thousands more nationwide, Arulanantham said.
     The U.S. Department of Justice did not immediately return a request for comment. It had argued that Section 1226(c) and Section 1225(b) of 8 U.S.C. “unambiguously require” limitless detention “subject to a finding of flight risk or dangerousness,” the ruling states.
     The appellate panel did not buy the government’s claim that it did not have the resources to conduct the hearings.
     “The government’s arguments regarding the resources required to implement the injunction are also not compelling,” Wardlaw wrote. “Hundreds of hearings have already occurred under the district court’s order, belying any suggestion that the preliminary injunction is prohibitively burdensome. Moreover, even if the government faced severe logistical difficulties in implementing the order – a premise that appellees dispute – they would merely represent the burdens of complying with the applicable statutes, as construed to avoid practices occasioned by an interpretation of the statutes that risks running afoul of the Constitution.”

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