ACLU Testifies Before Congress Against Unconstitutional Detention of Immigrants

May 24, 2011 12:00 am

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WASHINGTON – The American Civil Liberties Union today told Congress that immigrants should not be detained for indefinite or prolonged periods of time without a judicial hearing before an immigration judge.

In testimony presented to the House Judiciary Subcommittee on Immigration Policy and Enforcement, Ahilan Arulanantham, deputy legal director of the American Civil Liberties Union of Southern California said a bill introduced by Rep. Lamar Smith (R-Texas) Monday that would dramatically overhaul the current immigration detention system is unconstitutional. The bill would authorize the Department of Homeland Security (DHS) to strip people of their most basic form of due process – a bond hearing before an immigration judge to determine whether they pose a danger to society or are a flight risk. The bill would also expand DHS’s authority to lock up people who have final removal orders indefinitely, that is, potentially for a lifetime, even when the government cannot return them to their country of origin.

“The government should not have unchecked power to detain people indefinitely through the immigration laws,” said Arulanantham. “We cannot support a law that would allow the prolonged or indefinite detention of asylum-seekers who thirst for freedom, or immigrant parents who pursue their legal right to stay and care for their U.S. citizen children. Such laws are fit for repressive regimes, not for the United States of America.”

The possibility of indefinite detention arises when an individual receives a final removal order but the government cannot physically remove the person from the U.S., either because the U.S. lacks diplomatic ties with an individual’s home country, the home country refuses to accept the individual or the individual is stateless. However, the Supreme Court decided in Zadvydas v. Davis and Clark v. Martinez that the U.S. government cannot hold a person indefinitely and must release people from detention if there is no significant likelihood they will be deported in the reasonably foreseeable future.

Many of the individuals subjected to prolonged detention have already won their cases before an immigration judge, yet they remain imprisoned for years as DHS appeals their cases. The people locked up by DHS include victims of persecution or torture, parents of U.S. citizen children and workers with jobs, houses, businesses and other significant community ties.

“Everyone in this country has the right to due process as guaranteed by the U.S. Constitution,” said Joanne Lin, ACLU legislative counsel. “Creating a new vast federal preventive detention authority would result in the unnecessary detention of thousands more individuals who would otherwise contribute to the economy, serve their communities and support their families. We cannot afford to expend scarce taxpayers’ money on DHS’s wasteful detention system.”

The ACLU’s full testimony is available at:

The text of the bill introduced by Rep. Smith, H.R. 1932, is available at:

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