Case No. 05-cv-1332, United States District Court, District of Colorado
ACLU Case No. 2005-06
In this case, the ACLU challenges a federal regulation that imposes indefinite, potentially life-long detention on certain immigrants who are subject to final orders of removal (deportation) but cannot be sent back to their home counties. The former Immigration and Naturalization Service adopted the challenged regulation in response to the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001), which considered the plight of certain foreign nationals who were subject to final orders of removal on the basis of past criminal convictions for which they had completed their sentences. In cases in which the removal orders could not be carried out, the government argued that it could continue to hold the immigrants in jails and detention centers indefinitely, without any limit on the length of their confinement. The Court rejected the government’s argument and held that foreign nationals cannot be incarcerated indefinitely simply because they are subject to removal orders that cannot be effectuated. The governing statute, as interpreted by the Court, authorizes detention only if related to the statute’s basic purpose of carrying out removals. Under Zadvydas, detention of this sort is presumptively reasonable for six months, but once removal is no longer reasonably foreseeable, the statute does not authorize continued detention. Nonetheless, under the regulation adopted after Zadvydas, U.S. Immigration and Customs Enforcement (now responsible for immigration detention and removal) contends that it can continue to detain foreign nationals if it classifies them as “specially dangerous” due to an alleged mental illness.
The ACLU’s client in this case is a refugee from Vietnam who had been living as a lawful permanent resident in the United States for over twenty years. In July 2003, he was ordered removed on the basis of a 1985 theft conviction for which he had completed his sentence; he has been incarcerated in an immigration detention facility ever since. Because Vietnam has no repatriation agreement with the United States, he cannot be removed. While conceding that removal is not reasonably foreseeable, the government nevertheless contends that it can continue to subject the client to indefinite incarceration because it has classified him as “specially dangerous” on the basis of a contested psychiatrist’s evaluation. The ACLU lawsuit contends that the government does not have legal authority for the challenged detention. The lawsuit also contends that the detention at issue violates due process because the regulation lacks required procedural protections and fails to provide for any mental health treatment.
Mark Silverstein , ACLU of Colorado Legal Director
Robin Goldfaden , ACLU Immigrants
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