Demore v. Kim, 123 S. Ct. 1708 (2003)
In Demore v. Kim, (1) the Supreme Court of the United States held that Congress did not offend due process rights under the Fifth Amendment in requiring that criminal aliens awaiting their removal hearings be detained pursuant to the no-bail provision of the Immigration Nationality Act (INA) (8 U.S.C. [section] 1226(c)). The Court further held that the provision of the INA limiting judicial review of the Attorney General's discretion for the detention or release of criminal aliens did not preclude the Court of jurisdiction to grant habeas relief. (2) The Court considered the habeas corpus petition filed by a lawful permanent resident (LPR) detained by the Immigration and Naturalization Service (INS). (3) The habeas petition challenged the no-bail provision of the INA. (4)
This Note argues several reasons why the Supreme Court's ruling was erroneous. First, the Court's decision in Demore is inconsistent with its recent decision in Zadvydas v. Davis that aliens under final orders of removal may not be detained indefinitely, but only for a period reasonably necessary to secure the alien's removal. (5) As in Zadvydas, the government has not proffered a sufficiently strong justification for the blanket mandatory detention of criminal aliens under 8 U.S.C. [section] 1226. Furthermore, the Demore decision achieves the absurd result of providing more protection for the liberty of aliens already ordered deported than for those who have not yet been stripped of their right to remain in the United States. Second, Demore undermines the high status reserved for LPRs in the United States. Those criminal aliens who would be most appropriate for release pending their removal hearing are those with the strongest familial and community ties. Finally, the purpose of [section] 1226(c) is to ensure that criminal aliens appear for their removal proceedings. (6) The statute was passed in response to the severe inefficiencies and shortage of resources plaguing the INS, which largely contributed to a low percentage of non-detained criminal aliens appearing for their removal proceedings. (7) In finding that the government had a reasonable justification for mandatory detention of criminal aliens, the Court supported the restriction of individual liberties as a solution to government incompetence. Given the current reorganization in the United States immigration departments, it is an opportune time for Congress to restructure this removal process in order to safeguard the rights of lawful permanent aliens.
LAWS GOVERNING CRIMINAL ALIENS
History of Immigration Law in the United States
For a large part of this country's history, there has been neither a comprehensive body of immigration law nor laws specifically governing criminal aliens. (8) The first general immigration statute of 1882 barred immigration of "undesirable" aliens including convicts and mentally impaired individuals, but did not include a provision for the removal of aliens who committed crimes after entering the United States. (9) Restrictive immigration legislation was passed in 1917 and 1924 providing criminal grounds for deportation. (10)
The Immigration and Nationality Act of 1952 (INA) recodified and revised the immigration laws. (11) The INA augmented federal authority to remove certain criminal aliens and identified "crimes of moral turpitude" (12) as acts that could give rise to deportation. (13) However, until 1988 (14) all persons facing deportation were entitled to a bond hearing. (15)
In recent years, Congress has gradually limited the discretionary relief available to aggravated felons subject to deportation. (16) The culmination of this movement occurred with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). (17) The IIRIRA amended and reformed the INA and other immigration laws. (18) In addition to expediting removal of aliens arriving at ports with improper or fraudulent documents, the IIRIRA increased detention requirements for classes of aliens such as those involved in criminal, terrorist, or drug trafficking activities. (19) Congress also eliminated the discretion to release criminal aliens on bond, mandating the detention of virtually all such aliens. (20)
Section 1226(c) of the IIRIRA, entitled "Detention of Criminal Aliens," sets out the guidelines for the detention of criminal aliens pending removal hearings. Section 1226(c) provides in relevant part:
(1) Custody. The Attorney General shall take into custody any alien who--
(B) is deportable by reason of having committed any offense covered in section 1227 (a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227 (a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(2) Release. The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of the property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien. (21)
The convictions that trigger [section] 1226(c) include: (1) any "aggravated felony;" (22) (2) any two crimes involving moral turpitude committed at any time, regardless of the imposed sentence; (23) and (3) any single crime involving moral turpitude if it occurs within five years of the alien's admission into the United States when the term of imprisonment is at least one year. (24) An aggravated felony includes: (1) murder, rape, sexual abuse of a minor; (2) firearms or controlled substance trafficking; (3) a crime of violence with a prison term of at least one year; (4) theft or burglary with a sentence of at least one year; (5) fraud exceeding $10,000; or (6) offenses relating to obstruction of justice, perjury or bribery with a sentence of at least one year. (25)
Further, the Attorney General's "discretionary judgment regarding the application of this section shall not be subject to review." (26) A court may not set aside determinations by the Attorney General pursuant to this section regarding bond or parole or the detention or release of any alien. (27) The statute provides the Attorney General with the discretion to release an alien only when the alien's release is indispensable to the protection of a witness, potential witness, or a person assisting in a criminal investigation, and if the alien does not pose a threat to society or a flight risk. (28) The statute does not impart authority to the Attorney General to release criminal aliens during their removal proceeding solely based upon a determination that a criminal alien does not present a risk of flight or threat to the community. (29)
Federal Treatment of Immigration and Terrorism
In recent years, both Congress and the Executive Branch have made specific developments in response to the threat imposed by terrorism. The dissent in Demore (30) highlighted the statutory provisions representing the procedures for removal of alien terrorists. (31) The statute permits the Attorney General to take into custody and detain any alien thought to be participating in terrorist activity. (32) Significantly, the statute explicitly provides special roles for permanent resident aliens awaiting removal hearings. (33) Such aliens are allowed a release hearing to consider their flight risk and threat to the community. (34)
On November 25, 2002, President George W. Bush abolished the INS and transferred its responsibility to the Department of Homeland Security in the Homeland Security Act. (35) The enforcement functions of the INS were transferred into the Border and Transportation Security Directorate, and the Bureau of Immigration and Customs Enforcement (BICE) was established to carry out the immigration and customs laws of the United States. (36) One of the functions of BICE is to identify, apprehend, and remove criminal aliens. (37) The transition of enforcement functions into BICE has been occurring in phases and is incomplete to date. (38) The ramifications of the reorganization, therefore, are still unknown.
SUPREME COURT RULES IN ZADVYDAS V. DAVIS TO PROTECT DUE PROCESS RIGHTS OF ALIENS UNDER FINAL ORDER OF REMOVAL
Background of Zadvydas v. Davis
Justice Breyer, writing for the majority, (39) considered the writs of habeas corpus brought under 28 U.S.C. [section] 2241 by two criminal aliens challenging their continued detainment by the INS. (40) The aliens were detained pursuant to 8 U.S.C. [section] 1231 (a)(2), which requires the detention of aliens under final orders of removal during
a ninety-day removal period. (41) The INS had detained both aliens for periods longer than the ninety-day requirement. (42) The Court refused to allow the Attorney General to hold aliens indefinitely and decided aliens may only be detained for a period reasonably necessary to secure the alien's removal. (43)
The Court reviewed the due process rights of criminal aliens, finding protection of freedom from imprisonment unless detention is ordered in criminal proceedings with adequate procedural safeguards, or in civil proceedings where there is a special justification. (44) The Due Process Clause protects all aliens who have entered the United States, whether their presence is temporary, permanent, lawful or unlawful. (45) When an alien is under a...