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A Jamaican man who has spent the past 5 1/2 years in immigration detention facilities while fighting deportation must have a bond hearing within 60 days, a U.S. district court judge ordered on Friday. Legal advocates for immigrants said they hope the decision from the U.S. District Court for the Western District of New York will serve as a precedent for the many immigrants who have spent months and years in custody without a hearing to determine if their detention is warranted. “There are as many as 4,000 people subject to prolonged immigration detention without a hearing,” said Michael Tan, an attorney with the ACLU Immigrants’ Rights Project who helped represent the plaintiff, Errol Barrington Scarlett. Scarlett — with the help of the ACLU, the New York Civil Liberties Union and two pro bono attorneys from Seyfarth Shaw — sued the U.S. Department of Homeland Security Bureau of Immigration and Customs Enforcement on the grounds that his detention without a hearing violates the Immigration and Nationality Act and the right to due process. The lawsuit was just the latest in the long legal saga surrounding Scarlett’s status. Scarlett is a Jamaican who immigrated legally to New York in 1976. He was convicted of cocaine possession in 1999 and served three years and 10 months in prison before being released in 2002. The government initiated deportation proceedings the following year under the Immigration and Nationality Act based on his drug conviction, charging that he had been convicted of an aggravated felony. After losing his case before the immigration courts, Scarlett filed petition for review with the 2nd U.S. Circuit Court of Appeals in 2006, which granted a stay of deportation. Seyfarth Shaw attorneys Jeremi Chylinski and Lorie Almon got involved in the case, and the 2nd Circuit ruled in February 2009 that Scarlett’s drug conviction is not an aggravated felony, and he is eligible for cancellation of removal — a permanent form of immigration relief. Scarlett has remained in detention facilities throughout the legal proceedings without a bond hearing. According to court documents, the Department of Homeland Security reviewed his case four times and determined that he would present a threat to the community and would be a flight risk if released. “The government was saying that Mr. Scarlett was subject to mandatory detention until there was a permanent resolution to his case,” Tan said. “Its position was that he couldn’t even get a hearing on whether his detention was necessary because the proceedings were based on his conviction of a crime.” Scarlett filed his suit against the Department of Homeland Security in July 2008 in the Western District of New York, and U.S. District Court Judge Richard J. Arcara ordered on Friday that he must have a bond hearing within 60 days. Assistant U.S. Attorney Gail Y. Mitchell, who represented the government in the case, declined to comment, citing the ongoing nature of the case. However, the government’s response to Scarlett’s petition says that the decision to keep him in custody was in accordance with the Immigration and Nationality Act. Now, Scarlett’s fate once again lies in the hands of a judge in immigration court, who will determine whether he should be released on bond and, ultimately, if he will be allowed to remain in the United States. “Mr. Scarlett has been in jail for 5 1/2 years. He has spent more time in [immigration detention] than he did in prison for his underlying crime,” said Chylinski, who is continuing to represent Scarlett.

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