9th Circuit expands due process for detained immigrants

The American Civil Liberties Union of Southern California and other interest groups scored a major victory Monday when the 9th U.S. Circuit Court of Appeals affirmed a ruling that mandates all immigration officers hear evidence about a detainee’s ability to pay and any possible alternatives to detention before making a bail decision.

The three-judge panel affirmed a preliminary injunction granted by U.S. District Judge Jesus G. Bernal of the Central District in a class action filed on behalf of detainees who are in the country without permission. Hernandez v. Sessions, 2017 DJDAR 9616.

“This is the first time that a circuit court has recognized that this basic due process protection applies to people in removal proceedings,” said Michael Kaufman, a senior staff attorney with the ACLU of Southern California who led oral argument before the panel. “We anticipate this ruling will apply circuit-wide.”

In his opinion, Judge Stephen Reinhardt wrote that the due process clause of the Fifth Amendment “prohibits our government from discriminating against the poor in providing access to fundamental rights, including the freedom from physical restraints on individual liberty.”

Reinhardt had stern words for the nation’s immigration detention system.

“Deprivations of physical liberty are a pervasive feature of our current system of immigration enforcement,” he wrote. “While the temporary detention of non-citizens may sometimes be justified by concerns about public safety or flight risk, the government’s discretion to incarcerate non-citizens is always constrained by the requirements of due process: no person may be imprisoned merely on account of his poverty.”

The ACLU’s case was aided by UC Irvine School of Law’s Immigrant Rights Clinic. Law students and professors at the clinic often assist detainees going through the legal process. For this case, they gathered accounts of the hardships people in the country without permission experience while attempting to navigate the legal system.

“One of the stories in the brief is of a woman who’s been separated from her four kids. She’s been detained for more than a year,” said Professor Sameer Ashar, co-director of the clinic. “She’s from a family of fieldworkers … and can’t even afford the down payment to do an agreement with a private bond company.”

Ashar said the woman originally received a bail of $25,000. She was able to get it reduced to $12,500 but still cannot afford the down payment.

The ACLU of Southern California is hoping for an even bigger victory this week, with several staff members in Washington, D.C. for oral arguments at the U.S. Supreme Court in a case that could provide additional relief to detainees who could benefit from the 9th Circuit ruling.

That case, Jennings v. Rodriguez, looks to resolve the question of whether detainees can be held for more than six months without being given a bail hearing.

The Supreme Court’s most recent ruling didn’t put a hard time limit on how long a noncitizen can be detained without bail, only declaring that the time period must be “brief.” Under the current arrangement, some detainees remain in custody for years.

The Department of Justice declined to comment on the 9th Circuit ruling through a spokesperson.