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Years-long immigrant detentions unconstitutional, appeals court rules

By Bill Mears, CNN Supreme Court PRoducer
  • 3rd Circuit U.S. Court of Appeals ruled in the case of Senegalese immigrant Cheikh Diop
  • Diop had been in custody for nearly 3 years because of an old drug conviction
  • Court ruled that the detention without proper inquiries was a violation of due process
  • Obama administration has the option of appealing the case to the Supreme Court

(CNN) -- Prolonged imprisonment of immigrants fighting deportation -- without giving them bail hearings and without forcing the government to justify the detention -- is unconstitutional, a federal appeals court ruled Thursday.

Senegalese native Cheikh Diop had been in custody for more than two years and 11 months because of an old drug conviction. Under federal law, that meant he could be held in custody without a set time limit. The three-judge panel from the 3rd Circuit U.S. Court of Appeals in Philadelphia said that policy -- at least in this case -- violated Diop's rights.

"There can be no question that Diop's detention for nearly three years without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, was unreasonable and, therefore, a violation of the Due Process Clause," said the 23-page ruling.

The decision applies only to immigrant detainees within the federal circuit covered by Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands.

The American Civil Liberties Union, which represented Diop in his appeal, said he and other immigrants should only be held for a "reasonable" amount of time before getting a hearing before an immigration judge.

"The government should use this decision as an opportunity to change course and to conduct an immediate individualized review of all prolonged detainees to determine if their detention is actually necessary," said Judy Rabinovitz, deputy director of the ACLU Immigrants' Rights Project, after the ruling was announced.

The group had proposed a six-month time limit, but the government said such a rigid timetable was unreasonable, given what it said was a growing backlog of immigration cases and appeals. The appeals court agreed.

"We decline to adopt such a one-size-fits-all approach," said the judges. "Reasonableness, by its very nature, is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case." But they said in Diop's case that he was held too long.

Diop's lawyers had claimed earlier this year that anywhere from 500 to 1,000 people like him had been held by the U.S. Bureau of Immigration and Customs Enforcement (ICE) for at least six months without any bail hearing. That of a total of about 35,000 detainees, which the ACLU argued violated the Immigration and Nationality Act passed by Congress.

Court records show Diop had fled his native African nation twenty-one years ago, claiming he tortured and persecuted for his political beliefs. He was living as a father of four American born children in Wilkes-Barre, Pennsylvania and working as a cook. Then in 1995 he plead guilty to a state charge selling cocaine.

ICE officers arrested Diop 12 years later and said under a federal law that prior criminal conviction meant he could be deported. After some initial appearances before an immigration judge, his case languished for a number of reasons. He was eventually detained for 1,072 days in a New York prison before being released on bond. He is still fighting deportation and filed a lawsuit.

The complex nature of his state and federal proceedings, and his determination to fight on the legal front- - may keep his immigration status in limbo for years, said his ACLU lawyer.

The Obama administration has the option of appealing the Diop case to the Supreme Court. Two other appeals courts had made similar rulings favoring immigrants who sought bail hearings within a reasonable time.

The case is Diop v. ICE (10-1113).