`To deprive these individuals of their fundamental right to freedom furthers no government goal, while generating a considerable cost to the government, the alien and the alien's family' - Court

NEW YORK, (CMC) - In what is being described as a major victory for Caribbean nationals in immigration detention centres in the United States, a federal appeals Court has ruled that the government's mandatory detention policy is unconstitutional.

The Third United States Circuit Court of Appeals in Philadelphia, Pennsylvania has also ruled that each detainee is entitled to an individualised bond hearing.

"To deprive these individuals of their fundamental right to freedom furthers no government goal," the Court said, "while generating a considerable cost to the government, the alien and the alien's family."

Since 1998, the government mandated that all immigrants who face deportation because of the crimes they have committed must stay in detention after they finish serving their time, regardless of the duration of the deportation process.

But in overturning that policy, the Third Circuit Court of Appeals now says that while the government has a legitimate right to detain those who might flee or pose a threat to the community, the blanket detention policy violates the constitutional right to due process.

The ruling, which is binding on those in Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands, does not deal with those detained in the wake of the September 11 terrorist attacks.

In broadening its sweep of illegal immigrants in the country, the government has begun cracking down on immigrants who violated the terms of their student visas.

Earlier this month, immigration officials arrested 10 young people from the Middle East in San Diego, California, stating that more arrests are to come throughout the country.

This could significantly impact on the Caribbean community, particularly in New York, where there's a heavy concentration of Caribbean immigrants.

"We plan to continue to do this," said an immigration official, who spoke on condition of anonymity. "This is the first phase."

But the issue at hand deals with immigrants who were convicted of earlier crimes, served their sentences, and are detained awaiting a final deportation order.

Even so, the ruling is of particular interest to immigration and constitutional lawyers.

That's because the issue of blanket detention policies has taken on new importance with the hundreds of immigrants jailed in the wake of the hijacked aircraft attacks on the United States.

"What's especially significant is that this decision comes at a time when we're seeing more blanket detention policies," said Judy Rabinowitz, senior staff counsel of the American Civil Liberties Union's Immigrant Relief Project, who dealt with the Appeals Court case. "And here is a court saying that you have to look at each case."

The Appeals Court dealt with the case of Vindbhair Bholidas Patel, 55, a native of India, who resided in America since 1984.

Patel has been a permanent legal resident in St. Louis, Missouri, where he owned several Dunkin Donuts franchises, bagel shops and hotels.

In 1996, Immigration and Naturalization Service (INS) approved his application for naturalisation.

But before Patel could be administered the oath of allegiance, the INS revoked its approval, stating that he was convicted for harbouring an alien, and sentenced to five months home probation and five months in prison, which he served at Allenwood Federal Prison in Pennsylvania.

While in prison last year, the INS told Patel that this crime was an aggravated felony subject to removal from the United States.

And after serving his sentence, the INS took him to the Snyder County Jail in Pennsylvania, where he's currently detained.

The Appeals Court said that due process requires "an adequate and proportionate" justification for detention.

It said that Patel has been detained for 11 months, six months longer than his prison sentence for the underlying offence, and five months longer than the six-month period the Supreme Court held for post-order detainees.

"The government has not suggested that Patel poses a flight risk or danger to the community," the Court said. "He is a lawful permanent resident who has resided in this country for the last 17 years. He has significant business ties to the community, and his wife and four children reside in the United States.

"He was convicted of alien harbouring, not a crime with attendant dangers such as drug use," the Court added, "and he was permitted to remain out of custody during his criminal trial. In fact, the sentencing judge divided Patel's sentence into five months of home probation and five months of imprisonment, further reflecting the absence of any risk of flight or danger."

The Patel case was an outgrowth of another case, Zadvydas, in which the United States Supreme Court ruled last summer that immigrants who had received a final deportation order could not be detained indefinitely, but must be released after six months, unless it was likely that some country would take them in the reasonably near future.