ACLU History: Due Process: Freedom from Unconstitutional Detention

September 1, 2010
Few rights are more fundamental to human liberty than freedom from unconstitutional or arbitrary detention; yet the Anti-terrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) included provisions that required mandatory detention of permanent residents without regard for the specific circumstances of their case and permitted indefinite detention of non-citizens. As a result, the daily population of Immigration and Naturalization Service (INS) detainees more than doubled from approximately 8,500 detainees in 1996 to more than 20,000 less than five years later.

Thousands of immigrants languished in detention because either they had been rendered stateless (the state from which they originated no longer existed) or their country of origin refused to take them back. In thousands of other cases, longtime legal residents facing removal for minor criminal offenses – committed long ago with sentences long since completed – were jailed on the basis of mandatory detention rules with no corresponding provision for release. In response, the ACLU launched a multi-faceted initiative to challenge the new laws. This included the direction of court challenges; the provision of training to empower the immigration bar; providing comprehensive technical support to lawyers and advocates; and maintaining an internet listserv with hundreds of subscribers that served as a national forum for strategy and information sharing. The ACLU challenged the constitutionality of INS mandatory pre-hearing detention throughout the country and, in December 1998, Immigrants' Rights Project (IRP) arguments won the first case to strike down the new mandatory detention provision when a federal district court held that it violated the Due Process clause of the Fifth Amendment.

In a 1999 indefinite detention case, Fernandez v. Vosea, a federal district court judge ruled that, '…the government [contends]…that it can take a human being and keep him locked up for an eternity… I cannot ascribe to that reading of the constitution…an alien who has been ordered deported retains basic human rights, [including] the right to liberty…' In June 2001, the Supreme Court invalidated the INS' indefinite detention policy in Zadvydas v. Davis. The Court ruled – as the ACLU had argued – that detention is permissible under the statute only so long as removal is 'reasonably foreseeable' and that detention beyond that period would raise profound constitutional concerns. The Court's Zadvydas ruling was especially significant because it reaffirmed that non-citizens have a core fundamental, constitutionally-protected interest in freedom from physical detention – and that the government's justification for immigration detention must pass exacting constitutional scrutiny. As a result, thousands of indefinitely detained immigrants were entitled to release.


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