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The ACLU filed an amicus brief urging the Supreme Court to affirm a federal court ruling interpreting the immigration laws to require bond hearings for noncitizens whom the government has detained while they apply for protection from persecution or torture.

The plaintiffs in this case are a class of individuals detained by U.S. Immigration and Enforcement (鈥淚CE鈥�) in Virginia. All of them were previously deported from the U.S., but came back after facing persecution or torture in their countries of origin. All of them were screened by an asylum officer who found them to have a 鈥渞easonable fear鈥� of persecution or torture, and determined that their claims to protection should be heard in immigration court. However, under its current policies, ICE detains plaintiffs and individuals like them for months or even years while their cases are being decided, without ever giving them the basic due process of a hearing before a neutral decisionmaker to determine if their imprisonment serves a valid purpose. Instead, the only process plaintiffs and individuals like them receive are pro forma paper reviews by ICE鈥攖he jailing authority.

The court of appeals rejected the government鈥檚 detention policy, holding that the Immigration and Nationality Act (鈥淚NA鈥�) requires that plaintiffs receive a bond hearing where an immigration judge decides if they pose a flight risk or danger that requires their detention. Where the judge finds the person poses no such risk, ICE must release the individual from custody.

The amicus brief urges the Supreme Court to affirm the decision below. As the brief explains, the Court has long held that the due process touchstone for civil detention is an individualized hearing before a neutral decisionmaker to ensure the person鈥檚 imprisonment serves a valid purpose. This safeguard is especially important where, as here, people routinely face detention for prolonged periods of time. ICE鈥檚 paper reviews are no substitute for a hearing and fail to provide the process the Constitution requires. However, as the brief explains, the Court need not decide the serious due process issues presented by the government鈥檚 detention policy. Instead, under traditional principles of statutory interpretation, the Court can and should avoid the constitutional problem by interpreting the INA to require a bond hearing for plaintiffs and individuals like them so that they are not imprisonment without justification. Due process and basic decency require no less.