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Federal Court Rules that Prolonged Detention of Immigrants Is Unconstitutional

Christy Carnegie Fujio, JD, MA, Mike Corradini, and Jessica Kurtz on September 8, 2011

In February Cheik Diop, a Senegalese asylum seeker, walked out of an immigration detention facility in Pennsylvania. His release came nearly three years after he was first detained by Immigration and Customs Enforcement (ICE) in early 2008. Last week, a federal appeals court held that detaining Diop for 1,072-days while he fought to stay in the United States violated the Due Process Clause of the Fifth Amendment. This important ruling gives hope to the hundreds of thousands of immigrants who are detained every year.

In Diop v. ICE/Homeland Security, the Third Circuit Court of Appeals (with jurisdiction over Delaware, New Jersey, and Pennsylvania) addressed the constitutionality of the prolonged detention of immigrants under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). IIRIRA mandates that any person who is removable from the US on the basis of a criminal conviction must be detained while they await the outcome of their immigration cases. Diop, who represented himself in immigration, state, and federal court, successfully argued that the government only had the power to detain him for a reasonable period of time – and that holding him for the 35 months it took for the courts to decide his case was so unreasonable that it violated the Due Process Clause of the Fifth Amendment.

According to ICE, immigrants may be detained for as long as their deportation proceedings are pending, even if it takes several years. In the overburdened Immigration Court system, which employs far fewer judges than are needed to decide the outcomes of the hundreds of thousands of cases before them each year, this means that many immigrants are detained for years while awaiting the outcome of their case. The court rejected ICE’s argument, ruling that the statute only authorizes detention for a reasonable amount of time. Although the court refused to define “reasonable,” it strongly indicated that any detention over six months risks becoming unreasonable. At that point, an immigration detainee is entitled to a hearing to determine whether the person should be detained further (to ensure attendance at Immigration Court hearings), and whether he or she poses a threat to society.  

The court’s decision is an important reaffirmation that the nation’s sprawling immigration detention system is still bound by law and the Constitution. It also means that future immigrants won’t suffer the torturous detention and drawn-out fight that Diop endured in order to free himself from custody. While the goals of IIRIRA – ensuring attendance at immigration hearings and protecting the public from violent criminals – are undoubtedly important, its unchecked application too often results in unnecessarily long and severe detentions. The Third Circuit correctly interpreted Congress’ intent in enacting IIRIRA and still provided protection for the thousands of immigrants who are detained every day.

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