Three Federal Appeals Courts Declare Mandatory Detention of Immigrants Unconstitutional

FOR IMMEDIATE RELEASE

NEW YORK — In a move that signals Congress may have overplayed its hand when rewriting the nation’s immigration laws, the Tenth Circuit Court of Appeals today ruled that the mandatory detention provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 violates the Fifth Amendment.

The Tenth Circuit is the third appellate court within the last three months to strike down the statute as unconstitutional.

“All the decisions — first in the Third Circuit, then in the Ninth, and now in the Tenth — were decided unanimously and send a clear message that Congress went too far in 1996,” said Liliana Garces, staff attorney with the ACLU’s Immigrants’ Rights Project who brought the case, Hoang v. Comfort, before the Tenth Circuit.

At issue was the draconian law passed six years ago during a wave of anti-immigrant sentiment that required all immigrants who face possible deportation because of crimes they have committed to remain in detention after they finish serving their criminal sentences — no matter how long the deportation process lasts.

Since the mandatory detention statute took effect on October 1998, the ACLU’s Immigrants’ Rights Project has waged a litigation campaign against the provision. ACLU attorneys briefed and argued all three of the circuit court cases that have now held the statute unconstitutional and are litigating challenges to the law in other courts of appeals.

The Tenth Circuit case involved three longtime legal permanent residents who came to the United States as refugee children from Vietnam. All three individuals were convicted of crimes for which the government is trying to deport them. They filed writs of habeas corpus in their cases and were granted immigration bond hearings by district courts. At their hearings, they were all able to prove that they were neither dangers to the community nor flight risks and were released on bond pending their removal proceedings.

In its decision, the Tenth Circuit held that, “Offenses to which the mandatory detention provision … applies include not only dangerous offenses … but also less dangerous offenses such as crimes of moral turpitude [such as] tax evasion, assisting document fraud in some cases, and perjury. … Given the wide range of offenses … the safety of the public does not justify its mandatory detention of lawful permanent resident aliens without individualized determinations that they in fact pose a danger to the public.”

“The government has failed to show special justifications for the mandatory detention provision … which are sufficient to outweigh a lawful permanent resident alien’s constitutionally protected liberty interest in avoiding physical restraint without an individualized determination of flight risk or danger to the public,” the Court continued.

“The Tenth Circuit’s decision is particularly gratifying because it is the Circuit where we had the first district court decision strike down mandatory detention in 1998 shortly after the statute went into effect,” Garces said. “The decision vindicates all of the district judges who have struck down the statute as unconstitutional.”

The decision relied on a United States Supreme Court indefinite detention case, Zadvydas v. Davis, in which the ACLU played a leading role. In Zadvydas, the Court ruled that the government cannot indefinitely detain criminals who cannot be deported to their countries of origin because those countries will not take them back.

To read the Tenth Circuit Court of Appeals ruling see: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=011136.