ACLU: Detainees owed bail hearing after 6 months

Immigrants fighting deportation should not languish in U.S. detention centers for years without bail hearings, civil-rights lawyers argued Monday in a U.S. appeals court.

The American Civil Liberties Union, representing a Pennsylvania man now held for nearly three years, suggested a six-month window for such hearings. Cheikh Diop is fighting deportation to his native Senegal over a 1995 drug case.

"We think, under any reading, three years of locking somebody up without a bond hearing is unreasonable," ACLU lawyer Judy Rabinovitz argued to the U.S. 3rd Circuit Court.

Justice Department officials object to any set time limit, saying hearings should at most be ordered on a case-by-case basis. Immigration judges need flexibility to assess each situation and would be overwhelmed by the six-month rule, they said. At least one other U.S. circuit has said each case should be reviewed for "reasonableness."

"One size doesn't fit all," Justice lawyer Theodore Atkinson argued Monday.

"I tend to agree," Judge Julio M. Fuentes said. "(But) I start to wonder what is 'reasonable' when the position of the government is we can detain aliens indefinitely."

The ACLU believes that 500 to 1,000 of the 35,000 people now detained by U.S. Department of Homeland Security have been in custody for six months or more without bail hearings.

"It's hard to tell because of the way the government keeps its statistics," said Rabinovitz, deputy director of the ACLU Immigrants' Rights Project.

Diop fled Senegal in 1990 amid torture and political persecution, his lawyers said. He settled in Wilkes-Barre, Pa., worked for years as a restaurant cook and had four American-born children. In 1995, he pleaded guilty to selling $100 worth of cocaine.

Twelve years later, he was detained over the conviction and slated for deportation. He has since been held at a U.S. detention center in York.

The ACLU has long argued that the prolonged detention of such immigrants violates both the Immigration and Nationality Act and their right to due process.

ACLU lawyer Michael Tan, in a companion case Monday, pushed for the right to file a class-action lawsuit on behalf of detainees held a half-year or more. A district judge in Pennsylvania had denied the request.

"It makes no sense to lock up immigrants with legitimate challenges to deportation, who pose no threat to public safety and who are not flight risks," Tan said. "We spend millions of taxpayer dollars every year incarcerating people for no good reason."

The Justice Department charged that detainees like Diop are often to blame for their prolonged detentions because they file numerous criminal appeals and other motions to avoid deportation.

Diop had his Luzerne County guilty plea overturned in November because the judge found he was not told of the deportation risk and therefore did not enter his plea knowingly. The county prosecutor is appealing the decision, and D Rabinovitz said.

It could now take months or years for his criminal case to play out. His lawyers believe that should occur while he is home with his family, and perhaps working to support them.

"We are spending hundreds of thousands of dollars (on him). He is away from his children. What purpose does it serve?" Rabinovitz said.