Civil Rights Monitor
 |
The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives Winter 2004
Supreme Court Sets Back Immigrant and Human Rights, Rules that Congress May Order Detention of Noncitizens Without Bond1 Demore v. Kim, No. 01-1491
On April 29, 2003, the Supreme Court upheld a 1996 immigration law that requires the detention, with no possibility of release on bond, of noncitizens who are facing deportation for various criminal offenses. The Court's ruling in the case, Demore v. Kim, was viewed as a significant blow to the rights of noncitizens, and a reaffirmation of Congress' broad power to "make rules as to aliens that would be unacceptable if applied to citizens."
Background
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) includes a number of stringent provisions that call for the detention and deportation of noncitizens, regardless of their legal status or length of residency, who had been convicted of any of a wide range of criminal offenses. Among its provisions, IIRIRA requires that that such immigrants be taken into custody while deportation hearings are pending, and detained until proceedings have been completed, eliminating any possibility of release on bond.
This "mandatory detention" provision of IIRIRA was one of a number in the new law that were promptly and widely criticized shortly after it took effect. Immigration and civil rights advocates, the news media and even many members of Congress charged that the new laws - enacted as part of an effort to "get tough" on noncitizens who broke immigration or criminal laws - had gone too far and were having an unduly harsh impact on immigrants, their families, and communities. Advocates pointed to numerous cases where noncitizens had legally resided in the United States since a very young age, committed a minor nonviolent offense such as shoplifting or a misdemeanor drug offense and were rehabilitated, only to face mandatory deportation. Such deportation often took place many years or even decades after the offense had occurred. IIRIRA's detention provisions were also widely criticized because most immigrants were held in prison-like conditions, often right alongside people who were serving criminal sentences. A number of Members of Congress, in efforts led by Rep. Barney Frank (D-Mass.), repeatedly attempted to scale back the harsh mandatory provisions.
While legislative attempts to modify IIRIRA's provisions failed, parts of the new law were rolled back in the courts. In a 2001 decision by the Supreme Court in INS v. St. Cyr, a case litigated by the American Civil Liberties Union, the Court handed immigrants' rights advocates two victories. First, the Court ruled that Congress did not mean to prevent noncitizens from mounting statutory or constitutional challenges to immigration laws or policies in the federal courts. Second, the Court ruled that the elimination of a deportation waiver in 1996, which had previously spared deserving legal residents from deportation, was not meant to apply retroactively and thus bar relief to immigrants who were facing deportation due to old guilty pleas.
Several days later, the Court further advanced the rights of immigrants, in the case of Zadvydas v. Davis. In Zadvydas, the Court ruled that immigrants could not be indefinitely detained, the government was unable to deport them to their native countries. The ruling in Zadvydas was particularly noteworthy because it included, for perhaps the first time in the Court's history, a clear statement that Congress' broad, "plenary" power to regulate immigration was "subject to important constitutional limitations."
The mandatory detention provision, another feature of the 1996 laws, was also challenged in federal courts throughout the country. The majority of courts to rule on the issue, particularly after the Supreme Court's decision in the Zadvydas case, found the mandatory detention provision to be unconstitutional. While immigration authorities under such rulings still retained the authority to detain any immigrant who was a danger or a flight risk, they were required to at least provide legal permanent residents with a chance to be released on bond while awaiting hearings.
Hyung Joon Kim was one such legal permanent resident. Kim, a citizen of South Korea, came to the United States in 1984 at the age of six, and became a permanent resident two years later. In 1996 he was convicted of burglary, followed by a second conviction in 1997 for "petty theft with priors." Kim was sentenced to three years imprisonment, but was released less than two years later. Following the completion of his sentence, Kim was taken into custody by the Department of Justice (DOJ) to be deported, but was held for months without being provided a substantive hearing on his case.
Kim challenged the constitutionality of his detention. The court ordered the DOJ to provide Kim, who had now been in detention for more than six months, with a bond hearing, and he was released while deportation proceedings against him continued. The Court of Appeals for the Ninth Circuit, upon appeal by the DOJ, also ruled that the mandatory detention provision was unconstitutional, at least as applied to legal permanent residents such as Kim. Several other appellate courts reached the same conclusion, but the DOJ appealed the ruling in Kim's case to the Supreme Court.
Opinion
Chief Justice Rehnquist delivered the opinion of the Court, which reversed the ruling of the Ninth Circuit and rejected Kim's arguments that the mandatory detention law was unconstitutional.
The Court first had to answer the preliminary question of whether it even had the authority to hear the case in the first place. The DOJ argued that a separate provision in the mandatory detention law stripped the federal courts of all jurisdiction, as its language explicitly barred review of "any action or decision by the Attorney General . . . regarding the detention or release of any alien." But the Court, by a 6-3 margin, disagreed. Kim was not challenging a decision by the Attorney General, Rehnquist reasoned, but rather the law itself that required him to be detained, a separate type of challenge that was not encompassed by the statute. Rehnquist added that in order for the law to bar constitutional challenges, the intent of Congress to do so would have to be unmistakable.
Turning to the merits of the challenge, Rehnquist began by noting that Congress had been, in enacting the 1996 mandatory detention law, "justifiably concerned" by studies showing that percentages of criminal aliens were simply fleeing prior to their deportation hearings. Rehnquist then addressed the question of whether the no-bond detention law, enacted as a response, violated the due process rights of noncitizens who were being detained under it.
He pointed out that the Court had repeatedly upheld laws affecting immigrants that "would be unacceptable if applied to citizens," from a due process standpoint, and that detention had long been viewed as an essential component of the government's power to enforce immigration laws. For example, the Court had previously upheld laws that permitted the detention of noncitizens based solely upon their membership in the Communist Party or restricted their release based solely upon their age.
Rehnquist then attempted to distinguish the mandatory detention at issue in Kim from the "indefinite" sort of detention that raised due process concerns in the Zadvydas case just two years earlier, a decision that the Ninth Circuit had relied upon heavily in finding the mandatory detention law unconstitutional. He argued that the Zadvydas ruling was so different as to be of limited applicability here, for two reasons. First, he said, the Court in Zadvydas had addressed the detention of noncitizens who could not be deported, and that detention in such instances no longer served any immigration purpose that would otherwise justify it. The detention of aliens such as Kim, on the other hand, was justified by the government's interest in ensuring that deportation would take place and by the fact that Congress had not found less burdensome alternatives that met the same objective. Rehnquist added that even if alternatives to detention such as supervised release were proven equally effective, "when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least restrictive means to accomplish its goal." Second, while the detention of immigrants in Zadvydas was indefinite and potentially permanent, most immigrants affected by the law at issue in Kim were only held for a limited period of time, usually no more than several months - which, even in the case of immigrants who could not be deported such as those in Zadvydas, had been found to be a reasonable length of detention.
Concurring/Dissenting Opinions
In a concurring opinion, Justice Anthony Kennedy stated that he agreed in full with the Court's opinion. He added, however, that a legal permanent resident would be entitled to a bond hearing, in which flight risk and dangerousness would be taken into account, if there were "an unreasonable delay by the INS in pursuing and completing deportation proceedings." He agreed with Rehnquist, however, that the mandatory detention law itself was constitutional.
Justice Sandra Day O'Connor, in a separate opinion joined by Justices Antonin Scalia and Clarence Thomas, agreed with the Court's ruling that the mandatory detention law was constitutional, but disagreed on the question of jurisdiction. She believed the language very clearly barred any sort of judicial review of detention matters, including challenges to the constitutionality of the underlying law itself. O'Connor also doubted that a bar on any judicial review, even a repeal of habeas jurisdiction, would run afoul of the Suspension Clause.
Justice David Souter, joined by Justices John Paul Stevens and Ruth Bader Ginsburg, on the other hand, agreed with Chief Justice Rehnquist that the Court had jurisdiction over the case, but blasted the Court's ruling that the statute itself was constitutional. "The Court's holding that the Constitution permits the Government to lock up a lawful permanent resident of this country when there is concededly no reason to do so," Souter wrote, "forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process." Souter pointed out that Kim was not even claiming that he could not be detained, only that he was entitled to a "finding that detention is necessary to a governmental purpose," as applied to his particular case, before being taken into custody. Souter also argued that the Court had missed the central point of the Court's earlier ruling in Zadvydas: "detaining an alien requires more than the rationality of a general detention statute; any justification must go to the alien himself."
Implications
Immigration and civil rights advocates were deeply disappointed by the ruling, and called upon Congress to promptly repeal the mandatory detention law. "This decision is going to have devastating consequences for countless immigrants who will be needlessly jailed throughout their immigration hearings," said Judy Rabinowitz, a Senior Staff Attorney with the American Civil Liberties Union (ACLU) Immigrants' Rights Project, who argued the case before the Court. "The Court has failed to safeguard due process and fundamental fairness and we can only hope that Congress will see this as an opportunity to repeal this irrational and unjust law." Other legal experts added that the decision was unprecedented in that it allowed entire categories of people to be jailed without individual hearings. "This decision is extraordinary," stated American Bar Association president Alfred B. Carlton, Jr., "because in virtually every proceeding in the U.S. legal system a person would not be imprisoned without an individualized judicial determination that his or her detention is necessary."
Immigration attorneys point out that the decision still may leave some potential wiggle room for noncitizens facing lengthy deportation proceedings. For instance, the Court rested its opinion partially on the assumption that the average length of time spent in detention would be reasonably short. A legal resident who faced unusually lengthy hearings, however, could probably make a stronger case for release on bond. The same would be true of noncitizens who could not be deported because their native countries would not accept them, such as the "lifers" at issue in the Zadvydas case, as detaining such individuals would serve no purpose. Finally, the reach of the decision may be questionable in cases of individuals who can present strong evidence that they are not ultimately deportable. "This decision is not a blank check on the government's power to detain immigrants," argued Liliana Garces, an ACLU attorney who served as co-counsel in the case.
Still, immigrant and civil rights advocates saw little merit to the decision. "Legal immigrants convicted of relatively minor offenses should at least have a chance to show an immigration judge why they should not be detained or deported, and immigration judges should be able to make decisions based on the facts of the case," said Karen K. Narasaki, executive director of the National Asian Pacific American Legal Consortium (NAPALC). "Moreover, law enforcement should be free to direct resources towards real threats, not long-term legal residents who have paid their dues and gotten on with their lives.” NAPALC and the Leadership Conference on Civil Rights had filed an amicus curiae brief in the case, joined by a number of other civil rights organizations, urging the Court to strike down the mandatory detention provision.
  
|
