After Being Detained Five Years Without Bond Hearing, Immigrant To Get Day In Court

Affiliate: ACLU of New York
July 13, 2009 12:00 am

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BUFFALO, NY – A long-time lawful permanent resident fighting deportation will finally get a bond hearing after being held in immigration detention for five and a half years. Late Friday, a district court ordered that the government must provide Errol Barrington Scarlett with a hearing within 60 days before an immigration judge where the government must demonstrate that he poses sufficient danger or flight risk to warrant his continued detention. In his request for a bond hearing, Scarlett was represented by the American Civil Liberties Union, the New York Civil Liberties Union (NYCLU) and pro bono by Seyfarth, Shaw LLP.

“The court affirmed a basic constitutional principle: no one should be locked up for prolonged periods of time without a hearing to determine whether such detention is warranted,” said Michael Tan, an attorney with the ACLU Immigrants’ Rights Project. “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.”

The ACLU lawsuit, filed in U.S. District Court of the Western District of New York against the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE), charged that Scarlett’s prolonged immigration detention without a bond hearing violates the Immigration and Nationality Act (INA) and the right to due process under the U.S. Constitution.

Scarlett, originally from Jamaica, has lived in the United States for over thirty years and has four children and numerous siblings, all of whom are U.S. citizens. Because of his family ties and longtime legal residence, he is eligible for cancellation of removal – a permanent form of immigration relief. 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. During his lengthy detention, the government never gave him a hearing but only a string of “rubberstamp” custody reviews denying his release.

“We hope that this case will serve as a precedent for the many others who have been wrongfully detained,” said Arthur Eisenberg, Legal Director of the NYCLU.

The ACLU initially submitted a friend-of-the-court brief on behalf of Scarlett but then became his primary counsel after the magistrate judge recommended that Scarlett’s request for a hearing be granted.

Over the past few years, the ACLU has filed multiple lawsuits on behalf of individuals who have been held for prolonged periods of time while fighting their immigration cases. Recently, the ACLU filed a class action lawsuit in the Middle District of Pennsylvania on behalf of lawful permanent residents who are being imprisoned without bond hearings in Pennsylvania jails while they fight their immigration cases.

Lawyers on the case, Scarlett v. The United States Department of Homeland Security Bureau of Immigration and Customs Enforcement, et al., include Tan and Judy Rabinovitz of the ACLU Immigrants’ Rights Project, Eisenberg of the New York Civil Liberties Union and Lorie Almon and Jeremi Chylinski of Seyfarth Shaw LLP.

More information on the case, including the court order, legal briefs and a podcast with Scarlett are available online at:

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