It was considered conventional wisdom that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") established that detention under this authority is mandatory, does not provide for the possibility of release on bond, and does not require that the Executive Branch at any time justify its conduct. But a ruling from the federal appellate circuit which reviews cases from district courts in New Jersey and neighboring states indicated in 2011 that, in some circumstances, detention under this statute is unlawful.
The Third Circuit Court of Appeals decided in Diop v. ICE/Homeland Sec., 656 F. 3d 221 (Ct App, 3rd Cir. 2011) decided that the 1,072 days — two years, eleven months, and five days – which this defendant was detained pending adjudication of his petitions requesting withholding of removal was too long to be considered reasonable under the IIRIRA. That court found that the statute only authorized detentions that were reasonable in length and that the Due Process Clause of the Fifth Amendment to the Constitution requires that the Government establish that continued detention is necessary to further the purposes of the detention statute.
This decision has provided opportunities for similarly-situated detainees to challenge their detentions for being overly lengthy. But individuals seeking such relief need to understand the uphill nature of their effort. While the Court in Diop concluded that the controlling statute implicitly authorizes detention for a reasonable amount of time. But after such period, the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute's purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community. The length of the detention and the circumstances which cause the detention to be so lengthy must be taken in to consideration when assessing what constitutes a reasonable amount of time.
Just recently a detained citizen from the Dominican Republic sought to rely on the Diop decision to get the chance for release from detention. But in this case of Perez v. Aviles, Civil Action No. 14-0632 (SRC). (Dist. Court, D. New Jersey 2014), the District Court found that neither the length of the detention – which amounts to fourteen months - nor the reasons for that period of confinement warrant that Court to either release the petitioner or offer him the chance to make bond.
At The Shulman Law Group, LLC our immigration lawyers have experience with those who are in the United States, and have been charged or convicted of a crime, and are subsequently placed in deportation or removal proceedings. Our lawyers are constantly seeking to find creative solutions to our clients' deportation problems by staying abreast of new laws and regulations in addition to federal court decisions affecting immigrants. We also vigorously pursue post-conviction remedies in criminal cases to create affirmative defenses from deportation and /or removal, or to allow aliens to qualify for deportation /removal discretionary waivers.