Scholars to Senate: Prolonged and Indefinite Immigration Detention is Unconstitutional and un-American

While most countries accept the return of their citizens if the United States orders them deported, several refuse to take back them back, either because of a lack of formal relations with the U.S. (Cuba, for example), or simply because of slow background check processes.

To prevent people from being held in indefinite limbo, the Supreme Court ruled in Zadvydas v. Davis (2001) that the indefinite—or potentially lifelong—detention of immigrants raised "serious" constitutional concerns and interpreted the immigration statute to authorize detention of such immigrants only where their removal is reasonably foreseeable in the future. Most of the lower courts have also extended the principles of Zadvydas to the prolonged detention of immigrants, for months or even years, while their immigration cases are being decided, including asylum seekers with no criminal records or longtime lawful permanent residents with misdemeanor crimes. The courts have overwhelmingly found detention for months or years to be likely unconstitutional in the absence of the basic process of a bond hearing to determine if someone needs to be locked up.

But Sen. Chuck Grassley(R-Iowa) must not be up on his constitutional law because last week he proposed an amendment (number 53) to the Senate's immigration reform bill requiring the indefinite detention of thousands of immigrants who cannot be deported and the prolonged detention of immigrants for as long as it takes for their cases to be decided, without the basic protection of a bond hearing.

Today, 67 leading constitutional and immigration law professors and scholars sent a letter to the Senate Judiciary Committee sounding the alarm.

The letter reads, in part:

Senator Grassley's Amendment 53 proposes precisely the type of indefinite . . . detention that the Supreme Court has found to raise constitutional concerns . . . The amendment would unconstitutionally authorize extended detention for anyone convicted of one of a broad range of crimes – including minor misdemeanors and decades-old convictions – even if DHS concedes they cannot be removed. . . . Many individuals subject to this provision would have already spent months, and in some cases years, in immigration detention prior to a final removal order.

[The amendment] would [also] create a regime under which people in deportation proceedings would be mandatorily detained for years without ever having an immigration judge, nor even a DHS employee, determine whether they pose any flight risk or risk to the community. [It] would expressly authorize prolonged mandatory detention, "without limitation" of people with a very wide range of convictions, including nonviolent misdemeanors such as petty theft or marijuana possession, as well as the prolonged detention of arriving asylum seekers with no criminal records whatsoever . . . . The amendment would authorize prolonged detention even of people who have won their cases before an immigration judge based upon factors such as hardship to U.S. citizen children, long residence in the United States, domestic violence, or fear of torture or persecution, and who are defending against government appeals, including many individuals who will ultimately win the right to remain lawfully in the United States on these grounds.

Rather than create an expensive and draconian new preventive detention system that raises serious constitutional concerns, the senators should stick with what's already in the bill: namely, real solutions that provide bond hearings to all immigrants subject to prolonged detention to ensure that people aren't locked up unnecessarily on the taxpayer's time and mechanisms to put diplomatic pressure on countries who do not want to take back their citizens.

Prolonged, indefinite, and preventive detention belongs to repressive regimes, not America, and will almost certainly be challenged in court. Grassley 53 should be rejected.

For more information about the immigration reform bill, go to: https://www.aclu.org/immigration-reform-2013

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