In Sopo v. Attorney General, the Eleventh Circuit Court of Appeals held that the mandatory detention statute at U.S.C. § 1226(c), “authorizes detention for a reasonable amount of time. When this reasonable period is exceeded, the government must provide a bond hearing to determine whether the person’s continued detention is permissible. Such continued detention would only be appropriate where there was a finding that the person was a flight risk, or posed a danger to the community.
The Court did not adopt a bright-line rule regarding a specific period of time at which detention without a bond hearing would be considered unreasonably prolonged, but instead called for a case-by-case analysis to determine when the necessity for a bond hearing is triggered. Relevant factors include: the length of detention, the causes for any delay in proceedings, the likely duration of future detention, the likelihood that proceedings will culminate in a final order of removal, the foreseeability of removal if ordered removed, the length of the person’s criminal sentence when compared to the time spent in immigration detention, and the conditions of confinement while in immigration detention.
The Court was clear that the filing of a habeas petition, how prolonged detention has previously been challenged in the Eleventh Circuit, is not required and a person subject to prolonged mandatory detention should be able to request release on bond directly from an Immigration Judge. The Court noted, “[t]he government is constitutionally obligated to follow the law, and the law under § 1226(c) now includes a [implicit] temporal limitation against the unreasonably prolonged detention of a criminal alien without a bond hearing.” This is a welcome change, especially for detainees who must proceed without the benefit of counsel, given how difficult it is for an unrepresented detainee to effectively challenge their continued detention in Federal Court.
The full decision is available here: http://media.ca11.uscourts.gov/opinions/pub/files/201411421.pdf
A link to reports by Detention Watch Network regarding the conditions in certain immigration detention centers is available here: http://www.detentionwatchnetwork.org/pressroom/reports/2012/expose-and-close
Karen Winston regularly defends persons detained at immigration detention facilities throughout Florida and the U.S. If your loved one is detained and you have questions about their rights and potential defenses to deportation, contact our office today to schedule a consultation.