ACLU Criticizes High Court Detention Ruling, Calls on Congress to Repeal Irrational and Unjust Law

April 29, 2003 12:00 am

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NEW YORK — Responding to the Supreme Court’s decision today that upheld a 1996 mandatory immigration detention statute, the American Civil Liberties Union called the decision a blow to fundamental fairness and called on Congress to repeal the law.

“This decision is going to have devastating consequences for countless immigrants who will be needlessly jailed throughout their immigration hearings,” said Judy Rabinovitz, a Senior Staff Attorney with the ACLU’s Immigrants’ Rights Project who argued the case earlier this year. “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.”

The Court’s 5-4 ruling in Demore v. Kim, No.01-1491, involved a mandatory detention statute that was one of a series of harsh anti-immigrant measures enacted by Congress as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The provision requires that immigrants with criminal convictions — including lawful permanent residents with relatively minor crimes — be mandatorily detained throughout their deportation proceedings.

Four courts of appeals held that the statute violated the due process rights of lawful permanent residents. The Court today, however, reversed those decisions and said that when an immigrant concedes that he is deportable on criminal grounds the Constitution does not prohibit his mandatory detention “for the limited period of his removal proceedings.”

The Court’s decision does not address the detention of immigrants who do not concede deportability and rested on two important assumptions: the Court’s finding that deportation proceedings last, on average, only 47 days; and the existence of a meaningful procedure by which individuals who do not concede deportability can contest their inclusion under the statute.

Rabinovitz said the decision raises significant issues yet to be resolved. These include the extent to which the decision applies to individuals who do not concede deportability or to individuals whose deportation proceedings extend beyond the brief period of time contemplated by the Court.

“This decision is not a blank check on the government’s power to detain immigrants,” said Liliana Garces, an attorney with the ACLU’s Immigrants’ Rights Project who served as a co-counsel in the case. “The Court’s ruling turns on the specific facts and circumstances of this law and Mr. Kim’s case.”

The ACLU said that the immediate result of today’s ruling will be that many lawful permanent residents who were released on bond as a result of the court of appeals’ decisions, will be subject to re-incarceration, even though the immigration agency concedes that they pose neither a danger nor a flight risk and would not require detention.

Hyung Joon Kim is a 25-year-old lawful permanent resident who immigrated to the United States with his family at the age of six. In his dissenting opinion, Justice David Souter emphasized that the “INS has never argued that detaining Kim is necessary to guarantee his appearance for removal proceedings or to protect anyone from danger in the meantime.” In fact, the INS released him on $5,000 bond after the district court first held the statute unconstitutional.

“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 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,” Justice Souter wrote.

Others that served as counsel in the case include: Lee Gelernt, Lucas Guttentag, Steven Shapiro and Jayashri Srikantiah of the ACLU as well as Brian Condon of the Los Angeles-based law firm Arnold & Porter and A. Stephen Hut, Jr., Christopher Meade, Gregory Chernack and Katherine Fleet of the Washington, D.C.-based law firm Wilmer, Cutler & Pickering.

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