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A San Francisco judge appointed by President Bush has ruled that an emergency, post-Sept. 11 immigration regulation giving government officials broad detention powers is unconstitutional. In a 10-page decision released this week, U.S. District Judge Jeffrey White — the Northern District of California’s newest judge — ruled that there was no justifiable reason to allow government officials to automatically stay an immigration judge’s bond order releasing a non-citizen with pending deportation proceedings. “The regulation, which permits unilateral detention of individuals without a case-by-case determination after a reasoned finding that they do not pose a threat to safety or a risk of flight, violates the Due Process Clause because no special justification exists that outweighs the individual’s constitutionally protected interest in avoiding physical restraint,” wrote White in Zavala v. Ridge 04-00253. The Department of Homeland Security regulation, which became effective Oct. 31, allows government lawyers to override an immigration judge’s bond order by filing a form that automatically stays the order until the Board of Immigration Appeals makes a finding. The regulation, which was passed without public comment, does not provide any mandatory time frame for the appeal board to make a custody determination — effectively allowing an individual to be detained indefinitely. White’s ruling is the fourth reported decision criticizing the DHS regulation, according to Van Der Hout, Brigagliano & Nightingale partner Marc Van Der Hout, who represented the immigrant in the case. But White’s is the most all-encompassing, added Van Der Hout, because the judge addressed every single issue before the court. “I’m hopeful that higher-ups in Washington, as the government keeps losing cases, will take a look at this regulation and withdraw it, which is really what our goal is, and allow the court systems to work the way they’re supposed to,” Van Der Hout said. A spokesperson for the DHS did not return calls for comment. White ruled that the DHS regulation runs afoul of the Fifth Amendment both on substantive and procedural grounds. On a substantive level, the government “has not shown that any �special justification’ or compelling government interest exists that outweighs Petitioner’s constitutional liberties in order to justify his continued detention without bail.” An immigration judge will have already addressed the government’s stated safety concerns by determining that the individual is not a danger to the public or a significant flight risk and ordering the person released on bond, wrote White. Moreover, there already exists a less restrictive emergency stay provision that government attorneys could use if they disagree with the immigration judge. White also took issue with the procedural elements of the regulation, since it “conflates the functions of adjudicator and prosecutor.” “A unilateral determination made by the Service attorney that effectively overrules the reasoned decision of the Immigration Judge poses a serious risk of error,” wrote White. Javier Zavala, a native of Mexico and a legal permanent resident of the United States, was placed into deportation proceedings in 2003 after returning from a trip abroad. Immigration officials contended that a 1994 conviction for committing a lewd act on a child meant that Zavala could be deported. In November an immigration judge in Arizona determined that Zavala was not a danger to the community or a significant flight risk and ordered him released on $5,000 bond. The Bureau of Immigration and Customs Enforcement stayed the judge’s decision, using the 2001 DHS regulation. “The regulation has the effect of mandatory detention of a new class of aliens, although Congress has specified that such individuals are not subject to mandatory detention,” White wrote. Judge White, a former partner at Orrick, Herrington & Sutcliffe, was appointed to the Northern District by President Bush in 2002. The fact that the decision came at the hands of a Bush appointee was not inconsequential, said Van Der Hout. “It shows what we have said all along: that almost any judge is going to look at this and say this is outrageous, not just the quote-unquote liberal judges.”

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