At the same time that immigration is a hot-button issue on the presidential campaign trail, in the courts, immigration advocates are chipping away at the government's authority to detain non-citizens indefinitely.
Two rulings issued this week from the Second Circuit Court of Appeals in New York and the Ninth Circuit Court of Appeals in California say that detainees have the right to a bond hearing while they are fighting their deportation cases.
The practical impact? Thousands of immigrants, legal or not, who were held for indefinite periods now have the right to a release hearing where it will be up to an immigration judge to decide whether they are dangerous or present a flight risk. The courts' rulings apply in the states covered by those circuits.
Ever since 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, the government has detained broad categories of non-citizens for prolonged periods and denied them the right to challenge their detention.
The constitutionality of that section of the law was first challenged in 2003. Since then, there's been a flurry of court rulings.
"Every circuit [appeals] court has ruled that it is unlawful to hold a detainee without that person having the possibility of a hearing," said Ahilan Arulanantham, deputy legal director of the ACLU of Southern California.
The Ninth Circuit, in Rodriguez v. Robbins, ruled that the government has to justify "by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond." It also ruled the government has to consider alternatives to detention such as electronic monitoring devices. Finally, it said detainees should get a bond hearing every six months.
"This decision substantially decreases the likelihood people will get lost in the system for years on end because there will be some examination of why the person is still locked away. It provides them with an elemental component of due process," said Arulanantham.
In a more limited ruling, the Second Circuit in New York, in a case called Lora v. Shanahan adopted what it called "a bright-line rule" that detainees must get a hearing within six months of his or her detention.
Two other appellate courts, the Third and the Sixth Circuits, have ruled that a detainee must file a habeas petition or a lawsuit before getting a hearing.
With respect to the Ninth Circuit ruling, a spokesman for U.S. Immigration and Customs Enforcement said his agency " is aware of the judges' order and reviewing it."
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