Pennsylvania Court Rules Two Immigrants In Mandatory Detention Are Entitled To A Hearing

Ruling Part Of Growing Consensus Among Courts That Prolonged Detention Of Immigrants Raises Serious Constitutional Concerns

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HARRISBURG, PA – A federal court in Pennsylvania ordered that two long-time lawful permanent residents fighting deportation are entitled to a hearing to determine if they have been held in mandatory detention for too long. The U.S. District Court for the Middle District of Pennsylvania noted that there is a "growing consensus" among federal courts that the prolonged detention of immigrants raises "serious constitutional concerns."

In their request for hearings, the two immigrants are represented by the American Civil Liberties Union, the ACLU of Pennsylvania and Pepper Hamilton LLP.

"The court's message was loud and clear," said Judy Rabinovitz, Deputy Director of the ACLU Immigrants' Rights Project, who argued the case before the court last week. "The Constitution does not allow unlimited detention without due process just because removal proceedings will at some point come to an end. There is a limit to how long noncitizens can be locked up without a hearing to determine if their prolonged detention is justified."

The two immigrants in the case, Elliot Grenade, a lawful permanent resident from Trinidad and Tobago, and Alexander Alli, a lawful permanent resident from Ghana, have been detained for almost two years and one year respectively while they have been undergoing removal proceedings. In Monday's ruling, the court held that Grenade and Alli are entitled to a hearing within 20 days to determine whether their detention has exceeded the "brief and limited period" permitted by law, and if it has, to a bond hearing to determine if they pose a danger or flight risk that would justify such detention. In reaching this conclusion, the court rejected the government's argument that because their detention will at some point come to an end at the conclusion of the proceedings, the plaintiffs' detention without a hearing posed no constitutional problems.

Grenade and Alli had sought hearings not only for themselves but also for a class of similarly situated immigrants in the state of Pennsylvania who have been detained for prolonged periods of time without bond hearings to determine if their immigration detention is justified. The court, however, declined to grant class-wide relief citing constraints imposed by the Immigration and Nationality Act (INA). The ACLU disagrees with the court's interpretation of the statute and is considering appealing that aspect of the ruling.

"We are disappointed that the court found it lacked authority to grant class-wide relief," said Rabinovitz. "Absent such relief, many detainees in Pennsylvania – the overwhelming majority who lack legal representation – will be unable to benefit from the court's decision and are still detained without the most basic element of due process."

The court's opinion held that the prolonged detention of immigrants without bond hearings was inconsistent with both due process and the INA and noted its "grave concerns" about the INA's mandatory detention statute saying it "has forced the [government] to repeatedly interpose arguments that torture both law and logic."

"Many individuals in immigration detention pose no danger or flight risk that requires them to be locked up," said Valerie Burch, a staff attorney with the ACLU of Pennsylvania. "Yet they are deprived of their liberty, often for prolonged periods of time, without even a bond hearing to determine if such detention is justified. This violates due process, results in many individuals forfeiting meritorious claims, causes families financial and emotional hardship and is a huge drain on taxpayers' money."

Over the last several years, the use of detention as an immigration enforcement strategy has increased exponentially. On an average day, the U.S. Department of Homeland Security detains roughly 33,400 non-citizens in federal detention facilities and local jails across the country, resulting in more than a threefold increase in the detention population since just a decade ago.

Lawyers on the case include Rabinovitz, Michael Tan and Farrin Anello of the ACLU Immigrants' Rights Project, Burch and Vic Walczak of the ACLU of Pennsylvania, and Thomas Schmidt III, Kathleen Mullen and Frederick Alcaro of Pepper Hamilton LLP.

An ACLU Web page on prolonged detention of immigrants, "No End in Sight: Immigrants Locked Up for Years Without Hearings," can be found online at: www.aclu.org/immigrants/review/39906res20090617.html

More information on the case Alli et al v. Decker et al is available online at: www.aclu.org/immigrants/detention/39687res20090527.html