A federal court issued a ruling to ensure greater due process protections for individuals held in detention while they seek judicial review of their deportation orders. The court held that the government could not detain Vijendra Singh, who was held for nearly four years while the courts considered his challenge to his deportation order, without '''clear and convincing evidence' that his detention was necessary. In addition, the court ordered the government to maintain recordings of all detention proceedings in cases such as his, to allow for greater judicial oversight and accountability. The court's decision will likely assist hundreds of individuals who seek judicial review of their deportation orders.
The Ninth Circuit's decision is a victory for all immigrants, because the courts have forced the government to comply with basic due process protections in its treatment of people facing deportation,' said Ahilan Arulanantham, Deputy Legal Director of the ACLU of Southern California.
Vijendra Singh is a native of Fiji, who was admitted to the United States in 1979 on a visitor's visa. He became a lawful permanent resident in 1981 and has been married to Babita Singh, also a U.S. resident since 1985. They have five children, all of whom are U.S. citizens. In April 2007, Immigration and Customs Enforcement (ICE) charged that he could be deported because he had previous criminal convictions. Singh was taken into ICE custody on April 10, 2007 and has remained in custody while his deportation case remains pending.
In its decision, the Ninth Circuit Court of Appeals held that the bond hearing at which Mr. Singh was determined to be a flight risk and a danger failed to meet minimum due process standards. The court held that the government must justify the need to hold Mr. Singh for such an extended period of time by a heightened standard of proof "clear and convincing evidence" due to the significant deprivation of his liberty.
'''The requirement of a "clear and convincing" standard reflects the court's recognition of the significant emotional and financial toll faced by individuals who are forced to spend years separated from their loved ones while in detention,' said Judy Rabinovitz, Deputy Director of the ACLU Immigrants' Rights Project.
The court's decision that hearings must be audio taped also establishes an important due process protection. In Mr. Singh's case, an immigration judge found that Mr. Singh was not a flight risk during his bond hearing, but then inexplicably wrote just the opposite several weeks later when issuing a written order refusing to release Mr. Singh on bond. In the words of the court, an audio recording is necessary to protect against 'post-hoc reconstruction[s]' of bond hearings, particularly in the face of impending appeals, and to provide a '''record of sufficient completeness.'
'''No longer can an individual be deprived of his or her liberty for months and years at a time without basic protections like a recording that allow for adequate review and transparency,' said Professor Jayashri Srikantiah, Director of Stanford Law School's Immigrants' Rights Clinic.
Mr. Singh was represented by Professor Holly Cooper and law students Kelly Martin and Scott Grzenczyk of the UC Davis Immigration Law Clinic. The ACLU of Southern California, ACLU Immigrants' Rights Project and the Stanford Law School Immigrants' Rights Clinic submitted a '''friend of the court' brief.

An en banc panel of the United States Court of Appeals for the Ninth Circuit today ruled unanimously that a lawsuit by a Muslim woman forced by Orange County Sheriff's Department officials to remove her headscarf in front of strangers is headed back to court.
"We are immensely pleased with today's result because this means that Souhair Khatib will finally have her day in court and the County will have to explain why it had no alternative but to force her to violate her deeply held religious beliefs," said Mark Rosenbaum, Chief Counsel for the ACLU Foundation of Southern California, who argued the case before the en banc panel.
In 2006, Khatib, then a 33-year-old U.S. citizen, twice appeared at the Santa Ana Courthouse. While held in the courthouse holding facility for about 7 ½ hours, male county sheriff’s deputies, who staff the facility, ordered Khatib to remove her headscarf. A devout Muslim who incorporates the use of a hijab as part of her religious practice, Khatib believes she may not be uncovered in front of men who are not in her family. But in the crowded holding facility of that courthouse, that’s precisely what she was forced to do, her pleas for understanding falling on deaf ears. Khatib was visibly shaken by the experience, describing it as defiling and humiliating.
Khatib, represented by the ACLU Foundation of Southern California, who is co-counsel on the case with Troutman Sanders LLP, filed a lawsuit against the County of Orange in September 2007.
In July 2008, the trial court dismissed the suit after holding that the courthouse holding facility where Khatib was held was not covered by the Religious Land Use and Institutionalized Persons Act, a federal law that provides expansive protection for the religious freedom of persons confined to a variety of institutions.
In May 2010, a three-judge panel of the Ninth Circuit, by a 2-1 vote, agreed with the trial court’s ruling.
But today the Ninth Circuit's en banc panel found that the holding facility at the Orange County Santa Ana Courthouse qualifies as an "institution" under RLUIPA. This is the first case in the nation to apply RLUIPA to courthouse facilities and affirms the principle that religious freedom cannot automatically end at the courthouse door.
"We sought review by an eleven-member panel of the Ninth Circuit because we were deeply worried about the impact on religious freedom," said Hector Villagra, executive director of the ACLU Foundation of Southern California. Today's ruling recognizes the absurd result of requiring Orange County to protect a person's religious rights while detained in a jail, but not when the same person is transported to and held in the holding facility of a courthouse before and after making court appearances."
The Orange County sheriff's department has no policy accommodating religious clothing. This is surprising, considering the U.S. Department of Justice not only has a policy but expressly permits Muslim women to wear their head coverings as part of their religious practice. So does the state department of corrections, as well as the County of San Bernardino.
"If all these entities can safely accommodate the religious liberties of detainees within the system, there’s no reason Orange County cannot do the same," said Becki Kieffer, an attorney with Troutman Sanders LLP. They all face similar security concerns, and they are all subject to the same legal standard."