Andrew Wachtenheim: Judges Call for Curb on Immigration Detention, Administration Should Listen — and Act (Huffington Post)

This article was originally published at the Huffington Post, on November 13, 2015.

Judges Call for Curb on Immigration Detention, Administration Should Listen — and Act

By Andrew Wachtenheim, IDP Staff Attorney

The federal court decision blocking the president’s executive actions on immigration wasn’t the only significant judicial intervention in immigration policy in recent days. In late October, another court found against the administration, ruling that its practice of prolonged detention of certain immigrants without judicial oversight violates the Constitution.

In Lora v. Shanahan, the U.S. Court of Appeals for the Second Circuit in New York City ruled that federal immigration authorities may not hold immigrants with certain criminal convictions for longer than six months without showing, at a bond hearing, that he or she poses a risk of flight or a danger to the community. In so deciding, the Second Circuit became the latest judicial authority to admonish the federal immigration agency for its harsh and frequently unconstitutional treatment of immigrants in the United States, and to reaffirm the rights of noncitizens to basic due process.

The decision concerned the case of Alexander Lora, a citizen of the Dominican Republic who has lived in the United States for 25 years as a lawful permanent resident. He was arrested by immigration authorities in an early morning raid on his Brooklyn apartment and placed in deportation proceedings based on a single drug offense from 2009, for which he served no jail time. He was detained without independent oversight for months until his attorneys challenged the constitutionality of his detention and a federal court ordered a bond hearing.

Mr. Lora is among the hundreds of thousands of immigrants with criminal convictions — often for low-level or old offenses — who are detained for months or years while they fight to stay in the United States. They include lawful permanent residents, asylees and refugees, and survivors of domestic violence or other violent crimes; and they are detained indefinitely, without opportunity for a judge to consider whether they pose a flight risk or a threat to public safety, or weigh factors like the state of their health, family and community ties, employment history, or evidence of rehabilitation. (Contrast this with the criminal justice system, where bail hearings are a right.)

Issued the same day as a similar ruling by a federal court in California, the Loradecision provides relief to “thousands of individuals… who languish in county jails and in short-term and permanent facilities” in the court’s jurisdiction, which covers New York, Vermont, and Connecticut. Rather than wait for more judicial intervention, Congress and the president should, at a minimum, establish the right to a bond hearing within six months on a national level.

More important, though, the executive branch should use this moment as an opportunity to reconsider its vast detention regime that across-the-board favors detention over liberty, and is rife with human rights abuses. Without far-reaching changes in law and policy, the United States will continue to warehouse hundreds of thousands of human beings ever year in remotely located detention facilities under horrendous conditions: inadequate medical and psychiatric care, isolation from family and legal counsel, use of solitary confinement, to name a few. A bond hearing within six months of detention is certainly an improvement over no hearing at all. However, these immigrants — who have already been punished for their offenses in the criminal justice system — shouldn’t be in detention in the first place.

Policymakers are coming to recognize that many of the criminal justice policies of the past two decades — mass incarceration, mandatory minimum sentences, hyper-aggressive policing, three-strikes laws, harsh drug enforcement — have gone way too far, putting millions of people, especially people of color, behind bars, and wreaking havoc on families and communities. By contrast, the policies of mass detention and deportation of immigrants that grew out of the same law-and-order hysteria of the mid-1990s continue to intensify. Both systems are long overdue for fundamental reform: just as the age of mass incarceration must end, so too must the era of mass detention and deportation.

Describing the 30,000-plus people held in immigration custody in the United States on an average day under Congress’s notorious bed quota, and the devastating impact of detention on their lives and their families’ lives, the Lora court wrote, “We are confident that the government also does not wish for the type of outcomes described … and does not favor a regime that perpetuates them.”

The government should live up to this expectation and heed the Lora court’s call to curtail a detention regime that betrays our fundamental values of fairness and due process.