Wednesday, December 07, 2011

Diop: Mandatory Detention Limited To A Reasonable Period

In Diop v. ICE, the Third Circuit limited mandatory detention to a reasonable period. Sounds like a reasonable decision!

The ACLU has just come out with a practice advisory. You can find it at this link:
http://www.aclu.org/files/assets/diop_practice_advisory_pdf.pdf

Below is an explanation by the ACLU about its advisory and Diop:

Prolonged Mandatory Detention and Bond Eligibility: Diop v. ICE/Homeland Security

This advisory concerns the Third Circuit’s decision in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). Diop addresses whether the government may subject individuals to mandatory immigration detention for a prolonged period of time. The Court held that the Due Process Clause of the Fifth Amendment permits mandatory detention for only a “reasonable period of time,” and construed the mandatory detention statute, 8 U.S.C. § 1226(c), as authorizing mandatory detention only for a reasonable period. When detention exceeds that reasonable period, the noncitizen is entitled to an individualized hearing where the government must show that continued detention is necessary to prevent flight or danger to the community. Id. at 223.
This practice advisory discusses how certain detainees can use Diop to obtain bond hearings. Notably, although the Court held that reasonableness is a “function of the length of the detention,” id. at 232, it declined to adopt a presumptive period of time at which mandatory detention becomes unreasonably prolonged. Instead, the Court held that “[r]easonableness . . . is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case.” Id. at 234. Nonetheless, the Court recognized that reasonableness is largely a function of time, and that the more mandatory detention exceeds the periods contemplated by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003)—45 days to complete removal proceedings before the immigration judge (IJ), and five months for those who appeal their cases to the Board of Immigration Appeals (BIA)—the constitutionality of detention without a bond hearing becomes increasingly “suspect.” Id. Thus, your client’s right to a bond hearing will turn on showing that detention has become “unreasonable” in his or her case, with a significant—but not sole—factor being the length of detention.
The ACLU will be monitoring the implementation of Diop on an ongoing basis. Should you have questions or require technical assistance regarding a detention challenge under Diop, please contact Michael Tan at the ACLU Immigrants’ Rights Project, mtan@aclu.org / 212-284-7303.

2 Comments:

Anonymous Lulaine @ RD Legal Funding said...

There can be many obstacles to the rule of law when immigration comes into play. The fact that the detainees are not citizens adds to the dynamic even though they are guaranteed a hearing in this country. The rule of law overrules all and in many cases comes into contention with whatever the problem.

4:54 PM  
Anonymous Ciudadania Americana said...

I have to agree that sometimes, the rule of law is quite clashing with immigration law (just my opinion)

12:32 PM  

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