Due process for immigrant detainees


The federal government has the authority to detain and deport immigrants who violate the law. But it also has the responsibility to ensure that those it holds while they fight their deportation cases aren’t locked up for months, or years, without an opportunity to appear before an immigration judge who can determine whether their prolonged detention is warranted.

This week the U.S. 9th Circuit Court of Appeals affirmed the Obama administration’s obligation to provide such hearings to immigrants detained for more than six months, at least in Southern California. The ruling is welcome, but the government shouldn’t need a federal court to remind it that individuals are entitled to due process.

The 9th Circuit’s decision upholds a lower-court ruling in a class-action suit brought by Alejandro Rodriguez and other detainees. Rodriguez, a legal permanent resident, spent three years detained in Los Angeles-area immigration jails while fighting to stay in the U.S. During that time he was never provided a bail hearing. He was released only after the lawsuit was filed, and he later won his deportation case. The lower court then ordered hearings for all immigrants whose detention has surpassed six months.


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Despite the obvious justice of the lower court’s ruling, the Obama administration appealed the case, arguing that federal officials must detain asylum-seekers who arrive at the border, and also cited a 1996 law that requires mandatory detention of immigrants with past convictions for felonies or drug offenses. Such arguments, however, are specious. The 1996 law may require federal officials to detain certain immigrants, but it doesn’t give officials the right to ignore the Constitution indefinitely and deprive individuals, including green card holders, of their liberty for years without a bail hearing.

No doubt some critics will argue that the court’s decision undermines public safety. That’s simply not true. As Judge Kim McLane Wardlaw wrote on behalf of the three judge-panel, the ruling “will not flood our streets with fearsome criminals seeking to escape the force of American immigration law” because immigration judges can still refuse to release those who pose a danger to the community or are considered a flight risk. Those released can be ordered to wear electronic monitors to help ensure that they show up for their court hearings.

What the 9th Circuit’s decision will do is prevent immigrants, some of whom may eventually win the right to stay in the U.S., from languishing in detention for months or years without a chance to speak to a judge.