ACLU Practice Advisory, Prolonged Mandatory Detention and Bond Eligibility: Diop v. ICE/Homeland Security on the Third Circuits decision in September 2011 on prolonged mandatory immigration detention, Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). http://www.aclu.org/files/assets/diop_advisory_final.pdf

This practice advisory discusses how certain detainees can use Diop vs. ICE, 656 F.3d 221 (3d Cir. 2011) to obtain bond hearings. Notably, although the Court held that reasonableness is a function of the length of the detention, id. at 232, it declined to adopt a presumptive period of time at which mandatory detention becomes unreasonably prolonged. Instead, the Court held that [r]easonableness . . . is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case. Id. at 234. Nonetheless, the Court recognized that reasonableness is largely a function of time, and that the more mandatory detention exceeds the periods contemplated by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003)"45 days to complete removal proceedings before the immigration judge (IJ), and five months for those who appeal their cases to the Board of Immigration Appeals (BIA)"the constitutionality of detention without a bond hearing becomes increasingly suspect. Id. Thus, your clients right to a bond hearing will turn on showing that detention has become unreasonable in his or her case, with a significant"but not sole"factor being the length of detention. Thanks to Michael Tan.