On December 23, 2009, the ACLU-NJ and the ACLU Immigrants Rights Project agreed to represent an immigration detainee in challenging his prolonged detention. In 2001, the U.S. Supreme Court ruled in Zadvydas v. Davis that the United States Immigrations & Customs Enforcement (ICE) could not indefinitely hold an immigrant who had received a final order of removal but who ICE was unable to repatriate. In this and other recent cases, the ACLU challenges the constitutionality of prolonged detention for (1) detainees who have not received a final order of removal and (2) in circumstances where the government cannot show the detainee to be a danger or establish any other reason to continue confinement during the immigration appeals process.
Mark Augustovsky is an immigrant being held in Bergen County and whose detention has been prolonged due to government appeals of orders in his favor. He is stateless, as he was a citizen of the former USSR, but was not there when it dissolved and thus did not become a Lithuanian citizen. An immigration judge ruled twice in his favor on independent grounds that he should not be deported. The Department of Homeland Security has appealed to the Board of Immigration Affairs for the second time.
Current Status: On March 15, ICE agreed to release Augustovsky from detention, with an order of supervision. On April 23, 2010, the case was dismissed, with ICE agreeing not to detain Augustovsky again except for violations of the order.
- Augustovsky: Order (146 KB pdf)