After Being Detained Five Years Without Bond Hearing, Immigrant to Get Day in Court

A
long-time lawful permanent resident fighting deportation will finally
get a bond hearing after being held in immigration detention for five
and a half years. Late Friday, a district court ordered that the
government must provide Errol Barrington Scarlett with a hearing within
60 days before an immigration judge where the government must
demonstrate that he poses sufficient danger or flight risk to warrant
his continued detention. In his request for a bond hearing, Scarlett
was represented by the American Civil Liberties Union, the New York
Civil Liberties Union (NYCLU) and pro bono by Seyfarth, Shaw LLP.

"The court affirmed a basic
constitutional principle: no one should be locked up for prolonged
periods of time without a hearing to determine whether such detention
is warranted," said Michael Tan, an attorney with the ACLU Immigrants'
Rights Project. "We are relieved that after five and half years, Mr.
Scarlett will finally get his day in court, but thousands of other
legal residents are still detained for months or years without the most
basic element of due process - a bond hearing to determine if their
detention is even necessary."

The ACLU lawsuit, filed in U.S.
District Court of the Western District of New York against the
Department of Homeland Security (DHS) and Immigration and Customs
Enforcement (ICE), charged that Scarlett's prolonged immigration
detention without a bond hearing violates the Immigration and
Nationality Act (INA) and the right to due process under the U.S.
Constitution.

Scarlett, originally from Jamaica,
has lived in the United States for over thirty years and has four
children and numerous siblings, all of whom are U.S. citizens. Because
of his family ties and longtime legal residence, he is eligible for
cancellation of removal - a permanent form of immigration relief. There
is no evidence that Scarlett poses a threat to the community or a
flight risk, yet the government has subjected Scarlett to years of
mandatory detention while seeking to deport him based on a non-violent,
decade-old drug possession offense for which he had already served his
sentence. During his lengthy detention, the government never gave him a
hearing but only a string of "rubberstamp" custody reviews denying his
release.

"We hope that this case will serve
as a precedent for the many others who have been wrongfully detained,"
said Arthur Eisenberg, Legal Director of the NYCLU.

The ACLU initially submitted a
friend-of-the-court brief on behalf of Scarlett but then became his
primary counsel after the magistrate judge recommended that Scarlett's
request for a hearing be granted.

Over the past few years, the ACLU
has filed multiple lawsuits on behalf of individuals who have been held
for prolonged periods of time while fighting their immigration cases.
Recently, the ACLU filed a class action lawsuit in the Middle District
of Pennsylvania on behalf of lawful permanent residents who are being
imprisoned without bond hearings in Pennsylvania jails while they fight
their immigration cases.

Lawyers on the case, Scarlett v. The United States Department of Homeland Security Bureau of Immigration and Customs Enforcement, et al.,
include Tan and Judy Rabinovitz of the ACLU Immigrants' Rights Project,
Eisenberg of the New York Civil Liberties Union and Lorie Almon and
Jeremi Chylinski of Seyfarth Shaw LLP.

More information on the case, including the court order, legal briefs and a podcast with Scarlett are available online at: www.aclu.org/immigrants/detention/40272res20090128.html