Indefinite detention: tipping the scale toward the liberty interest of freedom.

• Author: Pages, Myrna
• Position: Case Note

INTRODUCTION

Could an American ever conceive of being detained in a prison cell indefinitely? Our Nation's Founding Fathers could not fathom such an unscrupulous idea, knowing that this would run afoul of central American values--life, liberty, and property. (1) Arguably, these constitutionally guaranteed interests are at stake not only for Americans but for anyone within the United States' borders. These vital interests were at stake for thousands of illegal aliens who were indefinitely detained, but in Zadvydas v. Davis, a 5-to-4 decision, the Supreme Court held that such indefinite detention was unconstitutional. (2)

Zadvydas focused on alien deportation proceedings and the Fifth Amendment (3) by consolidating two cases with analogous facts but different outcomes. (4) Specifically, the Supreme Court's ruling involved Kestutis Zadvydas and Kim Ho Ma, who were both ordered to be deported from the United States as a result of various crimes that they had committed. (5) At the time, the Immigration and Naturalization Service [hereinafter INS] had been unsuccessful in finding a country willing to accept the aliens. (6) As a result, both aliens remained in custody past the ninety-day removal period. (7) The aliens each filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. [section] 2241, (8) contesting their continued detention. (9) The District Court for the Eastern District of Louisiana granted Kestutis Zadvydas the writ, (10) but the U. S. Court of Appeals for the Fifth Circuit reversed the decision. (11) Like the district court in Louisiana, the District Court for the Western District of Washington granted Kim Ho Ma's writ. (12) However, unlike the Court of Appeals for the Fifth Circuit, the Ninth Circuit affirmed the District Court's decision. (13) In an attempt to reach a consensus and to address the controversial issue of indefinite detention, the U. S. Supreme Court granted writ of certiorari in both cases. (14)

The purpose of this Note is to analyze how the Court reached the decision in Zadvydas v. Davis. Part I discusses the history of the Due Process Clause of the Fifth Amendment in the removal context. (15) Part II discusses the current state of alien removal and deportation. (16) Part III provides a factual and procedural background leading up to the Zadvydas ruling and analyzes the case itself while focusing on the criteria the Court considered in reaching its decision. (17) Part IV examines the legal and social implications following the ruling and the effects of Zadvydas after September 11, 2001. (18)

1. HISTORY OF DUE PROCESS IN DEPORTATION SETTINGS

   1. Deportation and Constitutional Rights

      Alien residents have attempted to link the U. S. Constitution to deportation proceedings by invoking the Fourth and Sixth Amendments, but these attempts have proven unsuccessful. (19) Yamataya v. Fisher has been labeled as the landmark case that began the successful linking of the Constitution to deportation proceedings through invocation of the Fifth Amendment. (20) Kaoru Yamataya was a Japanese immigrant who came to the United States in 1901. (21) As an immigrant during this time period, Yamataya was considered deportable because "she was a pauper and a person likely to become a public charge." (22) Yamataya contested the deportation proceedings initiated against her, claiming that they were unjust. (23) The Court relied on the principle that Congress has the power to establish regulations governing aliens without judicial review. (24) The Court, however, drew a distinction between an alien seeking admission into the United States and an alien already in the United States. (25) The Court indicated that the failure to afford an alien resident notice or a fair chance to be heard prior to deportation, constituted a violation of the Due Process Clause of the Fifth Amendment. (26) The Court went on to say:

      [I]t is not competent for the Secretary of the Treasury ... at any time within the year limited by the statute, arbitrarily to cause an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. (27) The Court established that such arbitrary power was inconsistent with the well recognized principle of due process of law. (28) In this case, the Court ultimately held that Yamataya had been afforded due process of law because she was given the opportunity to be heard. (29)

      Indeed, Yamataya is not the only case that has addressed the Due Process Clause of the Fifth Amendment in the context of alien immigration proceedings. Other U. S. Supreme Court cases have upheld the proposition that due process extends to aliens. (30)

   2. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

      The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRIRA] was signed into law as an effort to correct enforcement and efficiency problems involving deportation proceedings, which were prevalent under existing Immigration Law. (31) The purpose of the law was to expedite the process of illegal alien identification and subsequent removal. (32) The legislation involves "an interrelated statutory structure designed to streamline the removal process and expeditiously remove criminal aliens from this country." (33) The IIRIRA's removal provisions took effect on April 1, 1997 (34) and shortened the removal period from six months to ninety days. (35) The IIRIRA "mandates detention of certain criminal aliens during the removal proceedings and for the subsequent [ninety-] day removal period" (36) and more importantly, implements the "post-removal-period provision" at issue in Zadvydas. (37)

2. ALIEN REMOVAL AND DEPORTATION

   1. Circumstances Warranting Removal

      The first class of aliens that are deportable includes those deemed inadmissible by law at the time they entered the United States, those who become inadmissible upon adjustment of their alien status, or those who violate their alien status. (38) An alien that falls within one of these circumstances may avoid deportation if he or she qualifies for a waiver. (39) For example, if the alien is inadmissible because he or she "knowingly ... encouraged, induced, assisted, abetted, or aided" in smuggling, that alien may nevertheless qualify for a waiver. (40) Also, an alien who is involved in "certain misrepresentations" may circumvent removal proceedings by obtaining a waiver. (41) However, obtaining this waiver is conditioned upon meeting certain requirements, such as having an immediate relative that is a United States citizen and having an immigrant visa. (42)

      The second class of deportable aliens includes those who have been convicted of criminal offenses, (43) including general crimes (44)--crimes involving moral turpitude, (45) aggravated felonies, (46) or participating in "high speed flight from an immigration checkpoint." (47) The criminal offense class also includes the violation of laws regarding "controlled substances." (48) An alien may also be deported if he or she is involved in stalking, domestic violence, or violence against children. (49) Furthermore, an alien may be deported if he or she fails to register and falsifies documents, (50) unlawfully votes, (51) or for security and other related reasons. (52)

   2. Alien Removal and Deportation Procedure

      Once an alien is deemed deportable under [section] 1227, the removal process begins with what is known as a "notice to appear." (53) Notice of appearance informs the alien about the nature of and the reasons for the proceedings. (54) If the alien fails to appear after being properly served with notice, he or she may face possible sanctions, including being removed in absentia. (55) Consequently, the alien will not be eligible for discretionary relief for ten years. (56)

      Pursuant to 8 U.S.C. [section] 1231(a), the United States Attorney General has the authority "to detain aliens who are subject to final orders of removal, in order to effectuate their removal from the United States." (57) A detained alien must be removed from the United States within a ninety-day removal period. (58) Once the ninety-day removal period expires, the United States Attorney General has the power to continue detaining inadmissible aliens, deportable aliens, and "[a]ny alien [whom] the Attorney General determines is a danger to the community or is unlikely to comply with the removal order." (59)

   1. The Story of Kestutis Zadvydas

      Kestutis Zadvydas was born in Germany. (60) Zadvydas was eight-years old when he and his family immigrated to the United States. (61) His family obtained admission to the U.S. with the help of a relocation program designed to assist displaced individuals. (62) Once in the U.S., Zadvydas began to acquire a criminal record. (63) Deportation proceedings were first initiated in 1977 based on two past convictions, but Zadvydas was released while the process was pending and he disappeared for ten years. (64) In 1987, Zadvydas was arrested for possession of cocaine with intent to distribute, but again fled the jurisdiction while out on bail. (65) He eventually turned himself in and was convicted on the drug charge in 1992 and served two years before being released on parole. (66) In 1994, INS officials took him into custody and an immigration judge ordered that he be held without bond pending the deportation process because of his history of flight from authorities. (67) In 1995, Zadvydas filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. [section] 2241. (68) Zadvydas claimed that his continued detention past the removal period was unconstitutional. (69) The District Court for the Eastern District of Louisiana granted the writ of habeas corpus based on its finding that the detention violated Zadvydas's...