Another Chance to "Fix ‘96:" Supreme Court to Review Mandatory Detention of Immigrants

October 3, 2002 12:00 am

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Statement of Judy Rabinovitz, Senior Staff Counsel, Immigrants’ Rights Project

Thursday, October 3, 2002

WASHINGTON – Kim v. Demore, 01-1491, is a challenge to a mandatory immigration detention statute enacted by Congress as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), one of a series of harsh anti-immigrant measures passed by Congress in 1996.

The specific statute, 8 U.S.C. Section 1226(c), also referred to as section 236(c) of the Immigration and Nationality Act, requires that the Immigration and Naturalization Service incarcerate, throughout deportation proceedings, virtually any immigrant who is charged with deportability based on a criminal offense.

The statute requires incarceration even of immigrants like our client: a lawful permanent resident who was convicted of relatively minor crimes, whom the INS itself concedes poses no danger or significant risk of flight, and whose convictions may not even render him deportable. Moreover, incarceration is required throughout the pendency of administrative removal proceedings, a period which, for individuals who are challenging their removal, rarely takes less than six months and often takes as long as several years.

The ACLU’s constitutional argument is that detention must be based on an individualized finding that a person is either a danger to the community or a flight risk. If such a finding is made, detention is permissible. But mandatory detention without such an individualized determination is not permissible.

Indeed, the Supreme Court has never upheld a detention statute that sweeps so broadly, while prohibiting any individualized determination that the purposes of detention are being served. Even in the immigration context, the Court has never upheld a statute like Section 1226(c) that imposes categorical detention without some opportunity to demonstrate that detention is not necessary.

Background Facts on Mr. Kim and Procedural History of the Case

Our client, Hyung Joon Kim, lawfully immigrated to the United States from South Korea with his family at the age of 6, and has lived virtually his entire life in this country as a lawful permanent resident. He is now 24 years old and faces possible deportation for two crimes he committed in 1996 and 1997 – breaking and entering a tool shed, and petty theft with priors (stemming from his attempt to shoplift merchandise valued at approximately $93). Mr. Kim served one-and-a-half years in jail for these two offenses and was released by the state of California in February 1999.

Upon his release from jail, Mr Kim was immediately incarcerated by the INS pursuant to the mandatory detention law. He remained incarcerated for six months, until a district court in the Northern District of California held the law unconstitutional and ordered that the INS provide Mr. Kim with an individualized bond hearing. Shortly thereafter, the INS agreed to release Mr. Kim on a $5,000 bond, based on the agency’s own determination that he posed no danger and no significant risk of flight.

In Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), the Ninth Circuit Court of Appeals affirmed the district court’s ruling, holding the detention statute unconstitutional as applied to lawful permanent residents like Mr. Kim. The court ruled that the Due Process Clause of the Fifth Amendment requires an individualized determination of whether a particular immigrant should remain jailed or be released and that Section 1226(c) violates that principle by imposing mandatory detention on any legal resident charged with one of the enumerated grounds of deportation, without any individualized determination of danger or flight risk.

Mr. Kim has been out on bond since August 1999. He has been reporting regularly, taking classes and working.

The ACLU Immigrants’ Rights Project’s Legal Challenge to Section 236(c)

The ACLU Immigrants’ Rights Project has been challenging the constitutionality of Section 1226(c) since it first took effect on October 9, 1998. Congress initially deferred implementation for two years, because of INS’s concern that it lacked sufficient detention space to be able to comply with the statute. In September 1998, the INS again sought to defer implementation of the statute, based on its view that mandatory detention was an inefficient use of INS’s limited detention space and would interfere with other enforcement needs. These efforts, however, were unsuccessful.

Since that time, the ACLU has been litigating the constitutionality of Section 1226(c) in district courts and courts of appeals across the country. Notwithstanding the INS’s objections to the statute — including statements that the statute “went too far” by requiring detention of some immigrants who do not need to be detained – two administrations have defended the statute as an exercise of Congress’ plenary authority over immigration.

In June 2001, the Supreme Court issued held in Zadvydas v. Davis, 533 U.S. 678 (2001) that the Immigration and Nationality Act does not authorize the indefinite detention of immigrants with final deportation orders whose countries refuse to take them back. In construing the statute to avoid the “serious constitutional problem” that would be posed by such indefinite detention, the Court recognized that immigrants are protected by the Due Process Clause and that, despite Congress’ plenary authority over immigration, immigration detention must comport with due process.

In the wake of the Court’s Zadvydas decision, four courts of appeals have issued decisions holding Section 1226(c) unconstitutional. In addition to Kim, these favorable rulings are Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001), Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002), and Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002). All four cases involved challenges to Section 1226(c) by lawful permanent residents. In each case, the courts held that due process required an individualized determination of danger and flight risk. In rejecting the government’s plenary power argument, the courts relied in large part on the Supreme Court’s reasoning in Zadvydas.

In addition to our constitutional argument in Kim, we will be making a statutory argument, namely that Section 1226(c) does not apply to individuals like Mr. Kim who have not yet received an order of deportation. By its plain language, the statute requires mandatory detention only where an alien “is deportable” based on criminal grounds. In light of the serious constitutional problem that is raised by imposing mandatory detention on lawful permanent residents who have not yet been ordered deportable, the Court is obliged to adopt any reasonable interpretation of the statute that avoids this problem. Notably, the last two immigration cases before the Court – Zadvydas and INS v. St. Cyr, 533 U.S. 289 (2001) – were both resolved on statutory grounds.

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