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Court Rules In Support Of Greater Due Process Protections For Detainee Held For Four Years By Immigration Authorities

Monday, April 4, 2011 permalink

LOS ANGELES, April 4, 2011 - A federal court issued a ruling to ensure greater due process protections for individuals held in detention while they seek judicial review of their deportation orders. The court held that the government could not detain Vijendra Singh, who was held for nearly four years while the courts considered his challenge to his deportation order, without “clear and convincing evidence” that his detention was necessary. In addition, the court ordered the government to maintain recordings of all detention proceedings in cases such as his, to allow for greater judicial oversight and accountability. The court‟s decision will likely assist hundreds of individuals who seek judicial review of their deportation orders.

“The Ninth Circuit‟s decision is a victory for all immigrants, because the courts have forced the government to comply with basic due process protections in its treatment of people facing deportation,” said Ahilan Arulanantham, Deputy Legal Director of the ACLU of Southern California.

Vijendra Singh is a native of Fiji, who was admitted to the United States in 1979 on a visitor‟s visa. He became a lawful permanent resident in 1981 and has been married to Babita Singh, also a U.S. resident since 1985. They have five children, all of whom are U.S. citizens. In April 2007, Immigration and Customs Enforcement (ICE) charged that he could be deported because he had previous criminal convictions. Singh was taken into ICE custody on April 10, 2007 and has remained in custody while his deportation case remains pending.

In its decision, the Ninth Circuit Court of Appeals held that the bond hearing at which Mr. Singh was determined to be a flight risk and a danger failed to meet minimum due process standards. The court held that the government must justify the need to hold Mr. Singh for such an extended period of time by a heightened standard of proof – “clear and convincing evidence” – due to the significant deprivation of his liberty.

“The requirement of a „clear and convincing‟ standard reflects the court‟s recognition of the significant emotional and financial toll faced by individuals who are forced to spend years separated from their loved ones while in detention,” said Judy Rabinovitz, Deputy Director of the ACLU Immigrants‟ Rights Project.

The court‟s decision that hearings must be audio taped also establishes an important due process protection. In Mr. Singh‟s case, an immigration judge found that Mr. Singh was not a flight risk during his bond hearing, but then inexplicably wrote just the opposite several weeks later when issuing a written order refusing to release Mr. Singh on bond. In the words of the court, an audio recording is necessary to protect against “post-hoc reconstruction[s]” of bond hearings, particularly in the face of impending appeals, and to provide a “record of sufficient completeness.”

“No longer can an individual be deprived of his or her liberty for months and years at a time without basic protections like a recording that allow for adequate review and transparency,” said Professor Jayashri Srikantiah, Director of Stanford Law School‟s Immigrants‟ Rights Clinic.

Mr. Singh was represented by Professor Holly Cooper and law students Kelly Martin and Scott Grzenczyk of the UC Davis Immigration Law Clinic. The ACLU of Southern California, ACLU Immigrants‟ Rights Project and the Stanford Law School Immigrants‟ Rights Clinic submitted a “friend of the court” brief.

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