The 9th Circuit's decision to rehear our case addressing the religious liberty of a Muslim woman forced by Orange County Sheriff's Department officials to remove her headscarf in front of strangers is a most welcome development.

We seemingly lost the case back in May, when a panel from this very same appellate court ruled, by a 2-1 vote, that the courthouse holding facility where our client was held did not meet the standard as defined by the Religious Land Use and Institutionalized Persons Act.

That had us deeply worried about the impact on religious freedom. By that logic, the county would be required by law to protect a person's religious rights while detained in a jail, but not when the same person was transported to and held in the holding facility of a courthouse before and after making court appearances. This would be an absurd result.

The facts: In 2006, Souhair 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 7.5 hours, county sheriff's deputies, who staff the facility, forced Khatib to remove her headscarf due to so-called security issues. A devout Muslim who incorporates the use of a hijab as part of her religious practice, she believes she may not be uncovered in front of men who are not related to her. 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 deeply shaken by the experience, describing it as defiling and humiliating.

The 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. If the feds and the state can accommodate the religious liberties of detainees within the system, there's no reason Orange County can't do the same.

As Judge Alex Kozinski noted in his dissenting opinion back in May:

Freud is reported to have said that sometimes a cigar is just a cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. The Religious Land Use and Institutionalized Persons Act (RLUIPA) covers prisoners held in certain kinds of institutions'''defined to include both correctional facilities (such as prisons and jails) and pretrial detention facilities. Souhair Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was therefore held in a facility covered by RLUIPA and is entitled to its protections. This pretty much sums up the case for me.

For us, too.

The court's decision to rehear the case before an 11-judge panel is a significant turning point. Our suit remains the first of its kind to deal with a courthouse holding facility. We know the outcome can affect a wide range of people struggling to maintain their religious rights. We look forward to the issue receiving the full hearing it deserves.

The American Civil Liberties Union of Southern California added refugees from Somalia and U.S. residents from El Salvador and Mexico to its class action lawsuit in federal court here challenging the U.S. government’s right to detain immigrants indefinitely while they await the outcome of immigration proceedings.
Co-counsel in the lawsuit include the national ACLU Immigrants’ Rights Project, the Stanford Law School Immigrants’ Rights Clinic, and the law firm of Sidley Austin LLP.
Named plaintiffs in the amended suit are six men held at the Mira Loma Detention Center in Lancaster, CA, for more than six months without having received a detention hearing, in violation of due process and the Immigration and Nationality Act.
The amended complaint revises the original lawsuit known as Rodriguez v. Hayes, which was filed in federal district court in Los Angeles in May 2007 on behalf of Alejandro Rodriguez, a man who was brought to the United States from Mexico as an infant, but was detained for more than three years without ever receiving a detention hearing while his immigration case was being adjudicated. In that suit, Rodriguez asked for a hearing to determine if his prolonged detention was justified and also sought to represent other similarly situated immigrants in the Central District of California.
The federal district court in California refused to grant the case class action status, but the U.S. Court of Appeals for the Ninth Circuit reversed that decision, noting that a class action would provide a remedy for immigration detainees who are unrepresented.
“These six men represent thousands of people forgotten in our immigration prison system, some of whom remain there for years without due process or the right to a lawyer,” said Ahilan Arulanantham, Director of Immigrants’ Rights and National Security at the ACLU/SC.
The six new plaintiffs include:

• Abdirizak Aden Farah and Yussuf Abdikadir, Somalian refugees who requested asylum from their war-torn country but have been imprisoned for months while the immigration courts process their applications;
• Alejandro Rodriguez, a lawful permanent resident from Mexico who came to the United States at the age of one;
• Abel Perez Ruelas, also from Mexico, who entered the U.S. on a visitor’s visa approximately eight years ago and is now married to a U.S. citizen;
• Jose Farias Cornejo, a lawful permanent resident whose family brought him here from Mexico before his first birthday; and
• Angel Armando Amaya, a man from El Salvador who has lived in this country since the age of 11.

   
(l to r: Yussuf Abdikadir, Jose Farias Cornejo and Abdirizak Aden Farah.)
On an average day, the U.S. Department of Homeland Security detains approximately 35,000 individuals in federal detention facilities and local jails across the country -- more than a threefold increase in the detention population since just a decade ago. In the Central District of California alone, hundreds of detainees each year are subjected to prolonged immigration detention while they fight their immigration cases.
During the past few years, the ACLU has filed multiple lawsuits on behalf of individual immigrants who have been held for prolonged periods of time while fighting their immigration cases, winning the release of more than a dozen individuals who were being unlawfully detained. The U.S. government has released those individuals, but has refused to change its policy on a broader scale.

Nearly two years after President Obama's election, Somali refugee Yussuf Abdikadir could be forgiven for being skeptical about the president's campaign motto, change you can believe in.
After facing severe persecution as a child in Somalia and later as an undocumented Somali refugee in Kenya (birthplace of the president's father, Barack Obama Sr.), Mr. Abdikadir fled to the United States to seek asylum. But federal authorities have incarcerated him in an immigration prison outside Los Angeles while the overburdened immigration courts slowly resolve his asylum case. He has been incarcerated for six months, but a hearing on whether he should be released has yet to take place.
The American Civil Liberties Union of Southern California added Mr. Abdilkadir and five other immigrants to its class action lawsuit in Los Angeles federal court, Rodriguez v. Hayes, challenging the U.S. government's right to detain immigrants indefinitely while they await the outcome of immigration proceedings. Named plaintiffs in the amended suit are six men from Somalia, El Salvador, and Mexico, each held at the Mira Loma Detention Center in Lancaster, CA, for more than six months without having received a detention hearing, in violation of due process and the Immigration and Nationality Act.
These men's stories are all too familiar. Every day in the Los Angeles area alone, more than 300 immigrants sitting in detention facilities have been there for more than six months - without the right to a release hearing. Hundreds of immigrants across the nation face a similar fate. Many of them never have been convicted of any crime. Each has finished serving any sentence he or she might have had. But the U.S. government continues to maintain that our immigration laws do not permit these detainees the benefit of either lawyers or release hearings.
This draconian policy affects not only refugees like Mr. Abdikadir, but also lawful permanent residents who have lived here nearly their whole lives. Jose Farias Cornejo is another victim of the immigration detention system. He came to the United States prior to his first birthday, the child of migrant farm workers. He considers himself an American  he speaks perfect English, finished school in Los Angeles, and has never known any other country. Like other Americans, though, he had substance abuse problems that led to legal problems. He was convicted of two minor crimes, including a drug offense for which a criminal court judge sentenced him to 60 days in jail. But because he isn't an American citizen, immigration authorities arrested him after his sentence was over and now want to take away his green card for that same crime. Although he almost certainly will win his immigration case because he is eligible for relief to remain here, despite his drug crime, it has taken nearly a year to complete it, during which he has sat in immigration prison.
As stories like this show, the U.S. immigration detention system has become a national disgrace. Nowhere else do we imprison people for so long ''' often for years -- without lawyers or even hearings to determine if imprisonment is really necessary. This broken system inflicts a heavy cost not just to the detainees who languish in the system, but also to their families, and ultimately to the American taxpayer, who has to pay for the cost of imprisoning thousands of people for no reason.
Surely the son of an immigrant should understand that this system needs to change.