A provision of the immigration laws, 8 U.S.C. § 1226(c), directs immigration authorities to detain noncitizens with certain criminal convictions while their deportation proceedings are pending, regardless of whether the particular person detained actually can be shown to pose any risk of flight or danger to others. The deportation process can take months or years to carry out, particularly when individuals seek relief from deportation on the grounds that they will be persecuted or tortured if deported.

After spending more than fourteen months in this type of immigration detention, the plaintiff in this case filed suit to challenge the constitutionality of his ongoing detention, arguing that such prolonged imprisonment requires a fair hearing before a neutral decisionmaker to determine whether he can safely be released on bond. The district court recognized that prolonged immigration detention without a bond hearing can violate the Due Process Clause of the Fifth Amendment, and that fourteen months of such detention exceeds anything the Supreme Court has previously allowed. But the court nevertheless denied the plaintiff a bond hearing, based primarily on its assessment that government officials had not unnecessarily prolonged his deportation proceedings. The plaintiff appealed that ruling to the U.S. Court of Appeals for the Second Circuit, where CAC filed an amicus brief urging reversal.

Our brief explains that the Fifth Amendment protects noncitizens as fully as citizens—shielding every “person” (not just every “citizen”) from deprivations of life, liberty, or property without due process of law. As the Supreme Court has long recognized, while the government may deport noncitizens who are ineligible to remain in this country, when doing so it must give them the same level of due process protection that it gives to citizens.

Our brief goes on to explain that two separate inquiries are necessary to determine if preventative detention is constitutional. First, the detention must be a proportional—not excessive—response to a legitimate state objective. Detention that becomes unduly prolonged fails this test. Even if the government is operating in good faith to promote a valid objective, the Supreme Court has explained, due process requires that the duration of preventive detention bear some “reasonable” relation to its purpose. Second, the Due Process Clause also requires that procedures be made available to guard against the risk of erroneous decisions being made about particular individuals. For preventive detention, this usually requires the government to convince a neutral decisionmaker that clear and convincing evidence shows the need for detention. This standard applies whether or not the person in question is a citizen, and whether or not the government is exercising its powers over immigration.

Finally, our brief demonstrates that the district court misapplied these fundamental principles of due process. By focusing mainly on whether the plaintiff’s deportation proceedings were unnecessarily delayed and whether his detention still served a “valid purpose,” the court ignored the fact that the length of detention must be proportional to that purpose. The district court also failed to consider whether the procedures that the plaintiff received were constitutionally adequate to justify detaining him on the basis that he may be dangerous or a flight risk. The Supreme Court has permitted individuals to be detained under 8 U.S.C. § 1226(c) without a bond hearing only for an initial “brief period.” After that period expires, due process requires the government to convince a neutral decisionmaker of the need for continued detention. For these reasons, the district court should be reversed, and individuals in the plaintiff’s position should be given a bond hearing.