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This week the Third Circuit Court of Appeals cast down a landmark ruling on Immigration Detention and Due Process.  In what should be known as yet another victory for one man and his pen, Chiekh Diop fought his way out of prison; a place he should not have been in for 1,072 days.  Arguably, he should not have spent even a night, but three years is unconstitutional.  Diop v ICE/Homeland Security (2011 WL3849739) was recently decided in Philadelphia, home of the Liberty Bell, on September 1st.

Diop got a letter from ICE in 2008, stating that his conviction from 2005 makes him deportable under §1182 (crime of moral turpitude), and that he unlawfully entered the USA.  Negotiation was not an option.  Like the situation of Jason Ng, who had no prior crimes yet ultimately died under the custody of ICE, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) requires the government to imprison someone.  The Act does not allow for bail.

Unable to pay for a lawyer, and with no pro bono clinic to step in, Diop was left to his own devices and (not knowing his specific circumstances) whatever he could get from available books and other prisoners.  It took over 6 months in a cage before he was able to explain his story to the judge.  Diop sat in York County Jail, one of 1,528 facilities that have been used by ICE over the past decade, and one of 324 have deported or released over 10 people in the past year.  York is within the top 6% of ICE prisons, having deported or released 4,217 people in 2008 alone.

In 1998, York County Jail and INS entered an Inter-Government Agreement (IGA) regarding how much taxpayer money would shift from the federal pocket to the jail.  They put the figure at $55/day, and estimated the equivalent of 40 prisoners spending a year, for a total of $803,000.  By 2010, York held Diop and 700 others, redistributing tax dollars at a rate over $14 million per year.  Private for-profit prison facilities (the growing trend) negotiate contracts over $100/day, and pay massive lobbying staffs to influence, even write, legislation that keeps the cells full.

Eventually the Immigration Judge decided that the 2005 crime was “probably” a serious crime, but Diop pieced together a handwritten appeal to the Board of Immigration Appeals.  The BIA agreed with Diop, that the Judge should actually determine if this drug charge was “particularly serious” or not.  They also disagreed with the Judge’s global political assessment, that “conditions in Senegal have changed.”  Diop had credible evidence that he had been targeted and beaten for his family’s involvement with a political group.

After a year in custody, the original Judge now ruled that Diop’s asylum application was too late, but he would not order the deportation; the 1995 crime seemed to be petty, and the government did not shoulder their burden of Diop being persecuted in Senegal.  He remained in prison, and Diop again broke out the pen, paper, and envelopes he bought from the for-profit prison commissary.  Next stop was Federal District Court, while the government (not willing to concede anything) appealed the Immigration Court ruling.

Detention: Tear Two

The Fed Court eventually ruled that Diop could not fight the “90 days to deport” (or release) rule, because Diop’s proceedings were “ongoing.”  They felt the 90 days shouldn’t begin until his case was closed.  Back to his cage, for Cheikh Diop.  The BIA appeal finally came down, ruling that the lower court was again unclear about what is a “serious” crime, and then finally Diop gets the help from the (surely massively under-staffed) Georgetown University Law Center.  With just over 100 law schools in America, and not all having immigration clinics, “Justice” requires people like Cheikh Diop to keep fighting when there is not even a barely-trained law student to take on his case.  Most detainees are held hundreds of miles from the nearest law clinic and, at times, thousands of miles from their families.

In a country that currently incarcerates nearly a million people for drugs, it should have been little surprise that Diop’s 1995 case was considered “serious.”  His deportation was appealed by Diop, and this time the BIA ordered the Judge to consider the Convention Against Torture provisions.  And then another crazy thing happened on the way to the Third Circuit:  the U.S. Supreme Court ruled that collateral consequences (such as deportation) need to be laid out when someone makes a guilty plea.  The Padilla v Kentucky ruling resulted in Diop’s (at the time not serious) 1995 guilty plea being tossed.  The Pennsylvania A.G., being no less forgiving than ICE attorneys, appealed that ruling too.

Eventually ICE relented and accepted that if the 1995 drug charge is tossed, Diop isn’t eligible for deportation.  It may have been a ploy to stop the federal appeal from continuing, but it did not work.  The Third Circuit agreed to rule on Diop because the man is still on appeal in Pennsylvania, and if he loses then ICE can pick him back up.  Fortunately for the rest of America, this important ruling was allowed to happen.

The Ruling

It is a growing fantasy that foreigners and former prisoners have no rights in America.  The Third Circuit seized on an important element of the questionable immigration law:

“Our Constitution forbids the Government from depriving “any person” of “life, liberty, or property without due process of law.” …  This Due Process Clause refers to “any person,” which means that aliens, no less than native-born citizens, are entitled to its protection.  Zadvydas v. Davis, 533 U.S. at 693.   Thus, § 1226(c) raises a serious risk of running afoul of this command unless it is premised on a “sufficiently strong special justification.”  Diop v. ICE/Homeland Sec., 10-1113, 2011 WL 3849739 (3d Cir. Sept. 1, 2011)

In an interesting take on the minds of jurors, the Third Circuit looked to SCOTUS, and the 2003 Denmore v. Kim case, then used a concurring opinion by Justice Kennedy to help interpret the Denmore ruling for Diop.  The crux is that if detaining immigrants because of serious crimes is a matter of “danger” or “flight,” then they should be detained immediately when the “serious” crime occurs.  Not, like with Diop, up to 13 years later when he is simply going about his business.

“In short, when detention becomes unreasonable, the Due Process Clause demands a hearing, at which the Government bears the burden of proving that continued detention is necessary to fulfill the purposes of the detention statute.”  Diop v. ICE/Homeland Sec., 10-1113, 2011 WL 3849739 (3d Cir. Sept. 1, 2011)

Due Process for One and All?

The Denmore Court noted that the typical detention is about 45 days when this statute is invoked, and about 5 months when someone is seeking to appeal the decision.  The Diop Court said there shall be no cut-and-dry rule, but these are important markers for due process.  Now consider that a criminal charge generally takes over a year to see a trial, often up to three years.  Furthermore, it is common for an appeal to take 3-5 years, with a one year wait simply for transcripts.  Ultimately the entire criminal justice system is flush with an absence of Due Process.  It lacks the infrastructure to support millions of criminal charges on an annual basis.

How much staff time did the government devote to litigate Diop’s single case?  It is difficult to chart how many proceedings, and how many lawyers Diop had to go through before ultimately being told that the lines on the Statue of Liberty were written for him too; before being told that the treaties the U.S. signs regarding persecution and torture apply to him too; before being told that spending almost three years in a cage is unreasonable.  The prison fees, the judges, the transport, the court clerks, stenographers… all of it because a man had some drugs at one point.  (For a point of reference, the average college campus likely has marijuana and cocaine in the kilos on campus as I write this.)

Cheikh Diop v. the American Criminal Justice System.  It should not be overlooked that the foreigner was ultimately deemed right, and the System has a massive amount of reform awaiting… or it will surely collapse under its own weight.