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In an important immigration decision, the 3rd U.S. Circuit Court of Appeals has ruled that an alien who is jailed at the beginning of deportation proceedings that stem from an “aggravated felony” conviction must be given a bail hearing. “We hold that mandatory detention of aliens after they have been found subject to removal but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded the opportunity for an individualized hearing at which they can show that they do not pose a flight risk or danger to the community,” 3rd Circuit Judge Dolores K. Sloviter wrote in Patel v. Zemski. Sloviter, who was joined by 3rd Circuit Judges Richard L. Nygaard and Theodore A. McKee, stopped short of declaring the federal statute unconstitutional. Instead, the decision says only that due process requires immigration judges to hold bail hearings for such aliens despite the statute’s explicit prohibition against even considering release. Only one other federal circuit, the 7th, has addressed the issue, and it went the other way, finding that Congress has “plenary power” over the treatment of aliens and that since virtually every alien who faces deportation as an aggravated felon will ultimately be deported, they have no liberty interest in being free from detention pending that final order. But Sloviter rejected the 7th Circuit’s reasoning in Parra v. Perryman, finding instead that aliens facing deportation nonetheless have a “fundamental” interest in their liberty that does not evaporate until the day their deportation is finalized. And since the right is a fundamental one, Sloviter found, the government must show a “compelling” interest that is furthered by a statute that deprives them of that right. Applying that test, Sloviter found that the government came up short. “To deprive these individuals of their fundamental right to freedom furthers no government goal, while generating a considerable cost to the government, the alien, and the alien’s family. The goals articulated by the government — to prevent aliens from absconding or endangering the community — only justify detention of those individuals who present such a risk,” Sloviter wrote. “Obviously, a hearing to evaluate flight risk and danger to the community presents a less restrictive means for the government to achieve its goals. It appears that such a procedure can be implemented with minimal burdens on the government,” Sloviter wrote. Under the statute, � 236(c) of the Immigration and Nationality Act, Sloviter noted that aliens are already entitled to a hearing to determine if they meet the statute’s definition of an “aggravated felon.” “There appears to be no insurmountable reason why this hearing could not be expanded to incorporate an evaluation of flight risk and danger, an evaluation that immigration judges already undertake for non-criminal aliens,” Sloviter wrote. The requiring of an individualized hearing, Sloviter said, “would infuse the detention process with the accuracy and precision that it currently lacks.” The ruling is a victory for attorneys Michelle S. Walker and Philip J. Katauskas of Philadelphia-based Pepper Hamilton who filed the habeas corpus petition along with attorneys Judy Rabinovitz and Liliana M. Garces and the American Civil Liberties Union Immigrants’ Rights Project in New York and Oakland, Calif., and attorneys Robert D. Kolken and Eric W. Schultz of Sacks & Kolken in Buffalo, N.Y. The case also garnered the attention of the American Immigration Lawyers Association and Citizens and Immigrants for Equal Justice, which joined forces to file a friend-of-the-court brief authored by attorney Jennifer Rochon of Kramer Levin Naftalis & Frankel in New York. In the appeal, Vinodbhai Bholidas Patel challenged the constitutionality of his detention during the pendency of his deportation proceedings, claiming it violates his substantive and procedural due process rights under the Fifth Amendment. Patel is a 55-year old native and citizen of India who has lived in the United States since 1984 and has been a lawful permanent resident since 1990. Prior to his detention, Patel resided in St. Louis where he has several businesses, including Dunkin’ Donuts franchises, bagel shops and hotels. Patel’s wife and four children also reside in the United States, along with several members of his extended family. In 1996, the INS approved Patel’s application for naturalization. But prior to scheduling the administration of the oath of allegiance, the INS revoked its approval of Patel’s naturalization request due to his guilty plea last year to charges of harboring an undocumented alien. According to the charges, Patel employed the illegal alien and gave him a place to live. But significantly, Patel had no involvement in the alien’s entry into the United States several years prior to his employment by Patel. Patel was sentenced to five months of home probation and five months in prison at the Allenwood Federal Prison in Pennsylvania. The length of the sentence is legally significant now because aliens who serve six months or more in prison cannot establish “good moral character,” a prerequisite to naturalization. Patel has not lost his eligibility for naturalization because his jail sentence was less than 180 days. In September 2000, while Patel was serving his sentence, the INS notified Patel that it was seeking deportation because his conviction constituted an “aggravated felony.” After Patel completed serving his sentence in January 2001, the INS took him into custody and placed him in detention in the Snyder County Prison in Selinsgrove, Pa., where he remains today. In a hearing before an immigration judge, Patel’s lawyers argued that his conviction was not an aggravated felony because it did not relate to “alien smuggling.” But the judge followed the precedent of the Board of Immigration Appeals (BIA) and held that a conviction for “harboring” aliens is an aggravated felony. As a result, the judge found that Patel was not entitled to any bail hearing because the statute calls for mandatory detention of all aggravated felons facing deportation. In May 2001, the BIA upheld that ruling. Patel then filed a habeas corpus petition in U.S. District Court, but Judge Ronald L. Buckwalter of the U.S. District Court for the Eastern District of Pennsylvania cited the 7th Circuit’s decision in Parra and rejected it. Now the 3rd Circuit has reversed Buckwalter’s decision and ordered that he issue a writ requiring that “Patel be released from custody unless the government makes a prompt individualized determination whether the continued detention of Patel is necessary to prevent risk of flight or danger to the community.” Sloviter found that current immigration laws “reflect part of a growing effort by Congress to expedite the removal of criminal aliens.” Prior to 1988, she said, any alien facing deportation was entitled to a bail hearing. But the landscape changed considerably with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act and the Anti-Terrorism and Effective Death Penalty Act. Now, when an alien asks for a bail hearing, the immigration judge must determine whether the aggravated felon statute applies. If it does, the hearing ends there because the law precludes the judge from even considering bail. Sloviter found that her court did not have jurisdiction to consider the merits of Patel’s argument that he should not be considered an aggravated felon, but that it was nonetheless legally significant that he is continuing to challenge that fact. Instead, Sloviter said, the 3rd Circuit’s only task was to determine whether Patel has the right to a bail hearing in which he could set out to prove that he will not flee. Although aliens trying to enter the United States have no due process rights, Sloviter found that any alien who has already entered is “entitled to the protection of the Due Process Clause whether their presence in this country is lawful or not.” Patel’s lawyers argued that the statute deprives him of a fundamental liberty interest, which requires the courts to apply heightened due process scrutiny. The government argued that the liberty interest of a criminal alien is not a fundamental right because, as the Parra court found, the alien’s chance of success in the removal proceedings is so minimal as to verge on the nonexistent. Instead, the government argued that the alien’s interest is the right to be free of “arbitrary” detention, which is “subject to only limited judicial review” because an alien is entitled to a lesser due process right than a citizen. But Sloviter sided with Patel, saying the U.S. Supreme Court recently recognized that aliens whose deportations have been finalized, but who remain in custody because the INS cannot find a country to take them, have a fundamental interest in their freedom. Sloviter said the justices “construed the statute to limit post-removal-order detention to a period reasonably necessary to bring about the alien’s removal, generally no more than six months.” Patel, she noted, has already been in INS custody for 11 months — six months longer than his prison sentence for the underlying offense, and five months longer than the six-month period the Supreme Court held presumptively reasonable for post-order detainees. As a result, Sloviter said, “while the [Supreme] Court did not address the constitutionality of pre-removal-order detention, there is no reason why the distinction between the statutes would make the Court’s reasoning inapplicable to this case.” Having found that Patel had a fundamental interest at stake, Sloviter turned to the question of whether the government’s interest in detaining him without any chance of a bail hearing was a compelling one. She found it did not. “Due process requires an adequate and proportionate justification for detention — a justification that cannot be established without an individualized inquiry into the reasons for detention,” Sloviter wrote. The government cited a study that found 90 percent of criminal aliens not detained during proceedings had fled. But Sloviter said a report from the Senate Committee on Governmental Affairs placed the percentage of aliens who fail to surrender at just 20 percent. “However, even if the 90 percent figure were correct, Section 236(c) requires the imprisonment of the 10 percent of aliens who would dutifully report to proceedings,” Sloviter wrote. Patel’s situation, Sloviter said, “presents an illustration of the injustice Section 236(c) can present.” Providing a bail hearing would completely cure the problem, Sloviter found. “We do not downplay the risk that some criminal aliens might pose to the community or the risk that they might flee before a final order is issued. But an immigration judge would retain the discretion to detain any alien who poses such a risk,” Sloviter wrote. Assistant U.S. Attorney Stephen J. Britt argued the case for the government.

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