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Ninth Circuit Panel Limits Scope of Alien Detention Statute
By KENNETH OFGANG, Staff Writer/Appellate Courts
A legally admitted alien facing removal from the United States following a non-violent felony conviction cannot be detained without bail unless the removal proceedings are expedited or the government shows that the person is a flight risk or a danger to the community, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel ordered a bail hearing within 60 days before an immigration judge for Monsuro O. Tijani, a legal resident from Nigeria who facing expulsion after having a served a prison term based on 12 counts of falsifying financial statements.
‘Bureaucratic Application’
“As of today’s date, Tijani has been deprived of his liberty by the government for a period of over two years and four months,” Senior Judge John T. Noonan wrote for the court.
“This deprivation has been inflicted not as the result of any adjudication of crime but as a bureaucratic application of the authority conferred on the Attorney General by 8 U.S.C. [Sec.] 1226(c),” which allows immigration authorities to hold an alien without bail pending removal if the subject is deemed a threat to property.
“Despite the substantial powers that Congress may exercise in regard to aliens, it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal,” Noonan wrote.
“To avoid deciding the constitutional issue, we interpret the authority conferred by [Sec.] 1226(c) as applying to expedited removal of criminal aliens,” the judge continued. “Two years and four months of process is not expeditious; and the foreseeable process in this court, where the government’s brief in Tijani’s appeal of the removal has not yet been filed, is a year or more.”
‘Substantial Argument’
Senior Judge A. Wallace Tashima concurred, but went further than Noonan, saying the statute is almost certainly unconstitutional. Detention without bail should not be imposed, he argued, if a lawfully admitted alien has a “substantial argument” that he or she is not removable.
Tijani qualifies under that standard, the judge went on to say, because it is not absolutely clear that the false financial statements were submitted with intent to defraud, and thus that the crime involves moral turpitude.
Judge Consuelo Callahan dissented. She argued that Tijani’s detention has not been overly long under the circumstances, and said that it appears clear from the record that he committed an aggravated felony involving moral turpitude
Copyright 2005, Metropolitan News Company