Friday, April 09, 2010

Akinola v. Weber (D.N.J.): No Mandatory Detention Allowed Where Held 17 Months During Removal Proceedings

Not a Third Circuit case -- rather, a case decided by a federal district court within the Third Circuit.

Akinola v. Weber, Civil Action No. 09-3415 (WJM) (D.N.J. Jan. 26, 2010) (Judge Martini).

For Mr. Akinola: Kole Akinola appearing pro se from Essex County Jail in Newark, NJ. For the governent, Ralph J. Marra, Jr. and Allan B.K. Urgent of the US Attorneys' Office in Newark, NJ.

There are many Constitutional challenges to mandatory detention that have not yet been decided. In Akinola, one of the many unresolved Constitutional challenges was the focus. Does mandatory detention apply to someone who has been held many months while challenging his removal? This is unlike other cases such as Demore v. Kim, 538 U.S. 510 (2003) where all sides presumed that detention while challenging removal would usually be 1.5 months or in a minority of cases would take 5 months -- nothing close to the actual 17 months in this case.

Judge Martini of the District of New Jersey held that for an individual who had been in immigration detention for 17 months while challenging his removal, “the Court is not inclined to accept Respondents’ argument in favor of continued detention based solely on the mandatory language of § 1226(c), particularly where the Supreme Court in Demore did not expressly contemplate the constitutionality of such prolonged detention, and where Respondents have offered no other compelling justification or authority for such prolonged detention . . . .” Akinola v. Weber, Civil Action No. 09-3415 (WJM), slip op. at 14 (D.N.J. Jan. 26, 2010). The court planned to hold a bond hearing, in habeas, on Feb. 18, 2010.

These important Constitutional challenges are being raised throughout the United States.


Anonymous US Immigration said...

This comment has been removed by a blog administrator.

12:52 AM  
Blogger Rex said...

I received a question about why mandatory detention would continue to be applied with someone unable to obtain a bond hearing for years. There are several parts to the answer -- assuming every judge agreed with the Akinola case, it dealt with a specific type of situation that does not necessarily apply to every person detained (such as those who have received a final order of removal). Although those people have ways to argue their situation, it is not exactly under the Akinola analysis.

Another struggle is that even if federal judges rule that it would be improper to hold someone under mandatory detention for a long time during ongoing removal proceedings without a bond hearing, it is not clear whether immigration judges would follow the federal judge's analysis and ruling. Immigration judges outside New Jersey would not consider themselves as required to follow the analysis in the Akinola case.

Perhaps the best way to continue is to hope more people detained around the country file their own challenges to how ICE and the Immigration Judges are applying mandatory detention in their cases.

7:51 AM  

Post a Comment

<< Home