SAN DIEGO, Calif. - The continued incarceration of a transgender refugee from Mexico who was tortured in her home country and has been granted asylum by a U.S. immigration judge is 'unconstitutional,' the ACLU and two legal partners argued in a petition filed today.

Seeking to end Oscar 'Diana' Santander's 15 months in jail, the habeas corpus petition filed in federal court calls for her release or an immediate hearing at which the government would be required to show how her lengthy and continuing detention is justified. The Southern California and San Diego affiliates of the American Civil Liberties Union filed the petition, together with the Casa Cornelia Law Center and the private law firm Greenberg Glusker Fields Claman & Machtinger.

Santander, who was tortured in Mexico by police and other government officials, was granted asylum and relief under the Convention Against Torture in May by an immigration judge. However, the government continues to incarcerate her at the San Diego Correctional Facility in Otay Mesa, Calif., while the Immigration and Customs Enforcement branch of the Department of Homeland Security appeals the ruling.

'Controlling federal law bars the government from imprisoning people who have won relief under the Convention Against Torture,' said Ahilan Arulanantham of the ACLU of Southern California, lead counsel in the case. 'It is shameful that the government refuses to follow that law, particularly in this case, where it has resulted in the imprisonment of a person with serious medical needs without any kind of detention hearing.'

The U.S. government contends that Santander cannot be released because she is an aggravated felon, a claim based on statements at her asylum hearing that prior to 1990, she was incarcerated in Mexico on a robbery charge. The immigration judge found no merit to that government claim at the hearing, citing lack of information or evidence of the alleged offense.

'Once again, the government is abusing its power and breaking the law. It has no right to continue locking up Ms. Santander. It should release her immediately," said David Blair-Loy, legal director of the ACLU of San Diego and Imperial counties.

The petition filed by the ACLU and its partners argues that Santander is not likely to ever be deported, and that her continued detention therefore violates the Immigration and Nationality Act and the due process clause of the Fifth Amendment.

The Ninth Circuit Court has twice stated that people who have prevailed in their asylum applications cannot be detained for a prolonged period. The circuit court has also twice held that foreign nationals detained for a prolonged period must be afforded a hearing where the government bears the burden to show that their detention remains justified.

'When, as here, a noncitizen has been detained for over fifteen months outside of any kind of criminal process, the detention becomes punitive,' the petition states.

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