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Ninth Circuit: Immigration Detainees Must be Afforded Opportunity to Challenge Continued Detention after Six Months

On April 16, 2013, the Ninth Circuit Court of Appeals affirmed a district court’s grant of preliminary injunctive relief to immigration detainees in Southern California, affording them an opportunity to challenge their continued detention before an Immigration Judge after six months.

On any given day, Immigration and Customs Enforcement (ICE) detains over 33,000 immigrants while they await the conclusion of administrative and judicial proceedings that will determine whether or not they may lawfully remain in the United States. ICE’s Los Angeles Field Office alone oversees the detention of more than 2,000 immigration detainees.

Alejandro Rodriguez and five other Southern California detainees filed suit challenging their prolonged detention, arguing that if they were not given an opportunity to seek review, in a neutral forum, of the government’s justification for their continued imprisonment, “grave constitutional concerns” would result.

The district court certified the case as a class-action consisting of non-citizens within the Central District of California detained for longer than six months pursuant to one of two general immigration detention statutes. The court then entered a preliminary injunction requiring the government to provide each member of the class with a bond hearing before an Immigration Judge with the power to grant their release – subject to reasonable conditions of supervision – unless the government demonstrates by clear and convincing evidence that continued detention is justified because the detainee poses a danger to the community or is a flight risk.

The Ninth Circuit affirmed on appeal, holding that while the government is authorized by statute to detain deportable immigrants, the statutes at issue, 8 U.S.C. § 1226(c) (providing for the detention of certain criminal immigrants) and § 1225(b) (providing for the detention of arriving immigrants), could not permissibly be read to authorize prolonged detention without an individualized determination of dangerousness or flight risk.

Relying on Ninth Circuit precedent, the Court of Appeals held that, as a general matter, detention is considered “prolonged” when it has lasted six months and is expected to continue more than minimally beyond that point. The appellate court noted that six months is more than sufficient time needed to conduct removal proceedings, which typically last less than 50 days on average. See: Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013).

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