Court Curbs Mandatory Detention of Aliens

Immigration officials must provide bail hearings to alien detainees who are accused of minor crimes and have long-settled into the community, a federal appeals court held Thursday, upending the practice of mandatory detention of most detainees.

The ruling by the 9th U.S. Circuit Court of Appeals upholds an injunction issued by U.S. District Judge Yvonne Gonzalez Rogers in Oakland in 2014. The ruling also breaks with four other circuit courts that have sided with the government on mandatory detention practices.

Under the policy challenged by immigrants’ rights groups, aliens who are fighting deportation may be locked up for months, despite their individual circumstances. The lawsuit argued that mandatory detention should be reserved for a narrow category of immigrants defined in the law as people who are transferred to immigration custody immediately after their release from jail or prison for specific types of serious crimes.

By contrast, the government argued that any alien may be held when they are taken into custody for a listed crime, no matter how much time has elapsed between the criminal custody and immigration custody.

“We conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody,” wrote Judge Jacqueline Nguyen.

One of the named plaintiffs, Mony Preap, was born in a refugee camp after his family fled Cambodia’s Khmer Rouge. He came to the U.S. as an infant and has been a lawful permanent resident since 1981. In 2006, he had two convictions for possession of marijuana. Years after his release at the end of his sentence, Preap was placed in immigration detention after a short sentence for simple battery, which is not a crime covered by mandatory detention policy. He was held without a bond hearing.

Since the lawsuit began, Preap has been released from custody, but his case is similar to thousands of others around the country.  Nguyen pointed out that 30,000 aliens a year are held in prison-like conditions waiting for a decision on their removal from the U.S.

The plaintiffs in this class action are lawful permanent residents who committed a crime that could lead to their removal from the U.S.  They served their sentences and upon release, returned to their families and communities in the U.S.  Years later, immigration officials detained them without a bond hearing.

It is this category of aliens the court has said are entitled to bond hearings and cannot be held without such a hearing under a policy of mandatory detention.  The class case covers aliens in detention in California.

“Under the plain language of [the immigration law], the government may detain without a bond hearing only those criminal aliens it takes into immigration custody promptly upon their release from triggering criminal custody,” Nguyen wrote.

She was joined by Judges Andrew Kleinfeld and Michelle Friedland.

Case: Preap v. Johnson, No. 14-16326




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