The R.I. ACLU today hailed a decision issued by U.S. District Court Judge William Smith, holding unconstitutional the INS’ efforts to indefinitely detain without a hearing, pending deportation proceedings, an immigrant with a criminal record. The court held that inmate Errol Hall, who is from Jamaica but has lived in this country for 30 years, had to be provided an opportunity to show whether he is a flight risk or a danger to the community that justifies his continued detention after three years. ACLU executive director Steven Brown called the ruling a “welcome reminder of the important role the judiciary must play” in protecting our freedoms.

A 1996 federal anti-immigrant law requires the INS to detain immigrants who are deportable because of a criminal record from the time their criminal sentence is completed until a decision on their removal is finalized. The mandatory detention applies to immigrants who are in this country lawfully or, like Hall, unlawfully. Regardless of the length of the detention, a detainee is not allowed a bail hearing under the statute.

In his ruling, Smith acknowledged that as an illegal alien, Hall, who was convicted of bank robbery back in 1983, has “ no legal basis for remaining in the United States. However, this fact alone does not eviscerate Hall's right not to be detained by the government pending deportation absent a hearing.” The court noted Hall’s lengthy presence in this country, the presence of his entire family in the United States, and the fact that he had been detained by the INS for the past three years pending a final decision on his request for an adjustment of status.

The INS had argued that the mandatory detention law was necessary in order to ensure that aliens do not abscond pending their final removal, and to protect the community from further criminal acts. Judge Smith agreed that these were important purposes, but not when applied in a mandatory fashion. He called “counter-intuitive” the law’s presumption that “ every alien in the United States that is awaiting deportation is presumed to be a flight risk.” He cited statistics showing that prior to enactment of the mandatory detention law, nearly 80% of non-detained aliens appeared for their final removal hearing.

As for protecting the public, Smith said: “Absent an individualized hearing to assess the danger posed by each individual, a statute that simply assumes that every alien convicted of an ‘aggravated felony’ is a danger to the community is not sufficiently narrowly tailored to address the compelling government interest of preventing the absconding of aliens pending deportation and/or protecting public safety.” He noted that the term “aggravated felony” is very broadly defined to encompass such crimes as document fraud, mail theft and perjury.

Smith concluded, “At an individualized bail hearing, an immigration judge may very well determine that the 55 year old Hall's prior conviction for armed robbery in 1983 poses a sufficient basis to conclude that he is a danger to the community. However, for [the law] simply to presume that Hall is dangerous without the opportunity to rebut that presumption violates his substantive due process rights. ”

The ACLU indicated today that shortly after Smith’s decision was issued, Hall was given an individualized bail and released from prison pending further proceedings in his case.

R.I. ACLU executive director Steven Brown said today: “The concept of indefinitely imprisoning people without any hearing is one that should be firmly rejected in any country that values liberty. As some of our most fundamental rights are being eroded in the name of fighting a war against terrorism, it is more crucial than ever that the courts serve as a bulwark to protect those rights. Especially at a time when immigrants are facing incredible hostility and discrimination, Judge Smith’s decision is a welcome reminder of the important role the judiciary must play if we are to retain the basic freedoms that we are fighting for.”