Detention of Non-citizens: the Supreme Court's Muddling of an Already Complex Issue - Blake Sharpton

• Publication year: 2006

Comment

Detention of Non-Citizens: The Supreme Court's Muddling of an Already Complex Issue

Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!¹

— Emma Lazarus

I. Introduction

Emma Lazarus's poem was engraved on a plaque and affixed to the base of the Statue of Liberty in 1903. Ms. Lazarus's words may have reflected the sentiment of the country in 1903, but the United States no longer throws its doors open to any and every person hoping for a better life. Rather, potential immigrants are faced with a labyrinth of legal hurdles in order to gain entry into the United States.

Under current U.S. immigration law, every person in the world is either a United States "national" or an "alien." With few exceptions, the term national today basically means citizen. Within the class of aliens, or "noncitizens," the most fundamental distinction drawn by the immigration laws is between immigrants and nonimmigrants. The Immigration and Nationality Act ("INA") defines nonimmigrants as those who are temporary entrants, such as tourists and students.² Every other type of potential entrant is referred to as an "immigrant." The term immigrant includes noncitizens who have been lawfully admitted as residents ("LPRs")³ and those who have not ("undocumented immigrants"). LPRs may reside in the United States permanently and may work.

Regardless of whether a noncitizen seeks admission as a nonimmigrant or an immigrant, in order to simply proceed past the United States border, the noncitizen must clear a number of statutory hurdles. Also, the noncitizen must not fall within any of the various "inadmissibility" grounds. Inadmissibility grounds include, for example, grounds that relate to crime, national security, health, or public assistance. If deemed inadmissible, the noncitizen is termed "excludable" and will not be able to enter the United States. He will be denied entry at the border unless he can obtain a waiver that will grant him temporary admission—referred to as parole.⁴ Even if paroled, the noncitizen still carries the label of being inadmissible unless he obtains a discretionary status change from the Attorney General. If no parole is granted to the noncitizen, he will be deemed "removable" from the United States and will be returned to the country from which he came.⁵

If a noncitizen clears the inadmissibility hurdle and obtains admission to the United States, the noncitizen is also subject to removal based on the different grounds of"deportability." These grounds include criminal behavior, health concerns, national security concerns, and grounds to secure the integrity of the immigration inspection system itself. In most cases, when nonimmigrants already in the United States are removed, it is usually because they simply overstayed. Immigrants, such as LPRs, can also be deported for conduct or circumstances not concerned with the immigration system itself, typically a criminal conviction.⁶

Finally, if a noncitizen is subject to removal by virtue of being excludable or deportable, various provisions of the INA subject the noncitizen to detention. It is possible under certain scenarios for the detention to continue indefinitely. Additionally, detention provisions differ as to the mandatory or discretionary nature of the detention.

A. Recent Supreme Court Noncitizen Detention Cases

Over the last four years, the Supreme Court has addressed noncitizen detention in three significant cases. The first case, Zadvydas v. Davis,⁷ held that deportable aliens with criminal records may not be detained indefinitely when their countries of origin refuse their return, despite their potential danger to the community.⁸ A narrow 5-4 majority, in which Justice O'Connor provided the fifth vote, based its decision on constitutional concerns in part, but ultimately struck down indefinite detention of deportable noncitizens in the name of statutory construction.⁹ Although some commentators believed Zadvydas was important because of potential due process protections,¹⁰ the more significant aspect of the case was its apparent reiteration of the historical distinction between a noncitizen who has "effected an entry into the United States and one who has never entered."¹¹ This distinction refers to noncitizens who have cleared the inadmissibility hurdle versus those who have not, a distinction that has been criticized as logically inseparable.¹² Thus, Zadvydas prohibited indefinite detention of a deportable, admissible, noncitizen notwithstanding the noncitizen being determined removable and the noncitizen's potential risk of flight and danger to the public.

The second case is Clark v. Martinez,¹³ in which the Court extended its holding in Zadvydas to prohibit indefinite detention of inadmissible aliens as well.¹⁴ However, the Court in Clark made no mention of constitutional concerns at all. Rather, the Court held the same statute that it determined did not allow indefinite detention in Zadvydas applied to inadmissible aliens as well.¹⁵ This case was a much stronger 7-2 majority because, as Justice Kennedy predicted in his dissent in Zadvydas, the statutory language at issue treated inadmissible and deportable noncitizens alike.¹⁶ Essentially, once Zadvydas was decided, the ruling in Clark was unavoidable, despite the Court's declaration in Zadvydas that the "distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law."¹⁷ Clark leaves unanswered what due process rights an inadmissible alien may have because the Court in Clark, unlike the Court in Zadvydas, made no mention of due process rights at all in ruling that inadmissible aliens may not be detained indefinitely.

The third case is Demore v. Hyung Joon Kim.¹⁸ In Demore, another narrow 5-4 majority, in which Justice O'Connor provided the fifth swing vote, the Court upheld the practice of mandatory detention while a noncitizen's removal hearing is pending.¹⁹ In upholding the practice of mandatory detention, the Court approved Congress's use of a proxy—whether the person has been convicted of an "aggravated felony"—to gauge the noncitizen's likelihood of appearance at a removal hearing and dangerousness to the public.²⁰ Interestingly, similar rationale for indefinite detention was rejected by the Court in Zadvydas.

These three cases created more new issues than they settled. First, although Zadvydas prohibited indefinite detention of a deportable alien, the Court appeared to reinforce a historical distinction between inadmissible aliens and admissible aliens. Yet, in Clark, the Court held that the same statute in Zadvydas applied equally to inadmissible aliens and rejected the government's proxy — dangerousness — for indefinite detention.²¹ Although the statute at issue in Zadvydas and Clark demanded the result reached in Clark, it is unclear whether Congress could simply amend the statute to explicitly treat inadmissible aliens differently from admissible aliens. Finally, the majority in Demore muddied the noncitizen detention issue even more by accepting Congress's proxy for mandatory detention, rather than requiring an individual determination that each noncitizen should be detained. In light of these issues, the Court should have addressed whether indefinite detention of inadmissible noncitizens is permitted by the Constitution, just like the Court stated that indefinite detention of an admissible noncitizen is not. In addition, the Court should have determined what due process rights noncitizens, admissible or inadmissible, actually have when it comes to detention, mandatory, indefinite, or otherwise.

This Comment explores the statutory and constitutional problems that exist as a result of Zadvydas, Demore, and to a lesser extent Clark. Part II provides a historical background and explanation of applicable immigration law. Part III discusses the Supreme Court's decisions in Zadvydas, Clark, Demore, a predecessor case Shaughnessy v. United States ex rel. Mezei,²² and the statutory and constitutional relationships between these cases. Part IV provides an analysis of the interplay between the three main cases and their progeny. This Comment concludes that these three cases leave significant questions as to noncitizen detention and that, ultimately, noncitizen detention serves a critical public safety purpose if imposed within a due process framework.

II. Background

In order to understand the issues involved regarding the legality of noncitizen detention, the statutory framework that makes up immigration law must be explored. In the United States today, immigration law is almost entirely a federal body of law.²³ Over the last century, Congress has enjoyed exceptionally broad power to regulate immigra-tion.²⁴ In 1893, the Supreme Court observed that the federal government is "vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to make it effective."²⁵ The Court also proclaimed that the "power of Congress, therefore, to expel, like the power to exclude, aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers . . . ."²⁶ More recently, the Court has stated that with respect to immigration cases, the role of the court "is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy."²⁷ This broad power has often been referred to as Congress's "plenary power" over immigration.²⁸

In addition to historical recognition of Congress's broad power over immigration, there has also been a historical distinction between"exclusion" and "deportation."²⁹ Exclusion typically...