The American Civil Liberties Union (ACLU) [advocacy website] filed a class action lawsuit [complaint, PDF; press release] Thursday on behalf of New Jersey immigrants challenging mandatory detention procedures. The policy in question is 8 USC § 1226(c) [text], which mandates the detention of noncitizens during deportation proceedings, and such noncitizens are not entitled to a bond hearing, even if they pose no danger or flight risk. In its complaint, the ACLU claims that many of the individuals detained under the law ultimately do not qualify for deportation, and argues that the mandatory detention in unconstitutional. The complaint demands:
In light of the significant constitutional issues presented by such detention, 8 USC § 1226(c) should be read not to authorize the mandatory detention of individuals who have a substantial challenge to deportability or inadmissibility. It should also be read to require the opportunity for a constitutionally adequate hearing to determine whether an individual is properly subject to mandatory detention. This hearing should include adequate notice; require that the government bear the burden of establishing prima facie deportability or inadmissibility on a ground that triggers mandatory detention; provide the detainee the opportunity to demonstrate that he has a substantial challenge to deportability or inadmissibility on those grounds; and require that a contemporaneous record of proceedings be made and maintained so that the determination is amenable to meaningful review.Although the Supreme Court in 2003 determined mandatory detentions to be constitutional in Demore v. Kim [opinion], the ACLU has said that the situation in the case at hand is sufficiently distinct to merit the court's consideration.
In recent years, the US has had great difficulty with its attempts to manage its immigration policies. Earlier this year the ACLU called out immigrant detention centers in Arizona and Georgia [JURIST reports] for being unsanitary, failing to give inmates proper access to medical treatment and even denying inmates due process. Last year the US Court of Appeals for the Third Circuit ruled [JURIST report] that imprisoned immigrants who are fighting deportation cannot be held indefinitely without a bail hearing and that the government must justify the need for the prolonged detention. In an effort to combat illegal immigration, the US Immigration and Customs Enforcement (ICE) launched a voluntary deportation program [JURIST report] in 2008 which would allow certain illegal immigrants to coordinate their removal from the US with ICE without the risk of home raids, arrest or detention. However, the program was abandoned [JURIST report] for its lack of success three weeks later.