In February Cheik Diop, aSenegalese asylum seeker, walked out of an immigration detention facility in Pennsylvania. Hisrelease came nearly three years after he was first detained by Immigration andCustoms Enforcement (ICE) in early 2008. Last week, a federal appeals courtheld that detaining Diop for 1,072-days while he fought to stay in the United States violatedthe Due Process Clause of the Fifth Amendment. This important ruling gives hopeto the hundreds of thousands of immigrants who are detained every year.
InDiop v. ICE/Homeland Security,the Third Circuit Court of Appeals (with jurisdiction over Delaware, NewJersey, and Pennsylvania) addressed the constitutionality of the prolongeddetention of immigrants under the Illegal Immigration Reform and ImmigrantResponsibility Act of 1996 (“IIRIRA”). IIRIRA mandates that any person who isremovable from the US on the basis of a criminal conviction must be detainedwhile they await the outcome of their immigration cases. Diop, who representedhimself in immigration, state, and federal court, successfully argued that thegovernment only had the power to detain him for a reasonable period of time –and that holding him for the 35 months it took for the courts to decide hiscase was so unreasonable that it violated the Due Process Clause of the FifthAmendment.
According to ICE, immigrants maybe detained for as long as their deportation proceedings are pending, even if ittakes several years. In the overburdened Immigration Court system, whichemploys far fewer judges than are needed to decide the outcomes of the hundredsof thousands of cases before them each year, this means that many immigrantsare detained for years while awaiting the outcome of their case. The courtrejected ICE’s argument, ruling that the statute only authorizes detention fora reasonable amount of time. Although the court refused to define “reasonable,”it strongly indicated that any detention over six months risks becomingunreasonable. At that point, an immigration detainee is entitled to a hearingto determine whether the person should be detained further (to ensure attendanceat Immigration Court hearings), and whether he or she poses a threat tosociety.
The court’s decision is animportant reaffirmation that the nation’s sprawling immigration detentionsystem is still bound by law and the Constitution. It also means that futureimmigrants won’t suffer the torturous detention and drawn-out fight that Diopendured in order to free himself from custody. While the goals of IIRIRA –ensuring attendance at immigration hearings and protecting the public fromviolent criminals – are undoubtedly important, its unchecked application toooften results in unnecessarily long and severe detentions. The Third Circuitcorrectly interpreted Congress’ intent in enacting IIRIRA and still providedprotection for the thousands of immigrants who are detained every day.