Lamar Smith’s bill could prevent immigrants from challenging their detention, the author writes. | AP Photo
By LAURA MURPHY | 7/14/11 9:49 PM EDT
Amadou Diouf came to the United States 15 years ago seeking, like so many before him, a small piece of the American dream. But his became a nightmare when he was arrested and thrown into immigration detention in 2003 for overstaying his visa.
Despite Diouf’s marriage to a U.S. citizen, and his productive life in the United States, immigration authorities justified his detention, in part, by claiming he had a “lack of family support.” Diouf was locked up for two years before finally being granted a hearing before an immigration judge. The court determined he was neither a danger to the community nor a flight risk and could be safely released.
But others like Diouf would not be so lucky under the provisions of a bill recently introduced by the House Judiciary Committee chairman, Rep. Lamar Smith (R-Texas). That bill could strip immigrants of any opportunity to challenge their detention in front of a judge and does nothing to address the serious issues of delay and lack of resources that plague the immigration court system. It sweeps broadly, and would require the Department of Homeland Security to detain a large swath of immigrants — many with no criminal history at all.
Smith has asserted that the bill, H.R.1932, will protect people from “dangerous criminals,” but it could lead to the detention of many other immigrants – including perhaps some lawful permanent residents.
Productive members of our communities could be incarcerated with no opportunity to challenge their detention when it is clear they might not be deported in the near future — possibly even in their lifetimes.
The immigration detention system is already overcrowded and costly. The system holds more than 33,000 individuals on average each day — at a cost of $1.9 billion a year. The cost to taxpayers is $45,000 per detainee per year, and is expected to increase if this bill is passed.
Those in immigration custody often have a hard time arranging representation, and an estimated 84 percent of those detained do not have lawyers. Though immigration detention facilities look very much like prisons — and indeed often share space with jails — roughly half the people now in immigration detention have never been convicted of any crime.
This law could be more than unnecessary — it could be unconstitutional. Supreme Court decisions have established that detaining non-citizens for immigration purposes is only legitimate when done to increases the likelihood that an individual appears at a removal hearing or for deportation. In 2001 in Zadvydas v. Clark, and again in 2005 in Clark v. Martinez, the court determined that, once it is clear that immigrant detainees will not be removed in the “foreseeable future,” they may not be confined indefinitely.
The Supreme Court has also ruled that noncriminal detention, more generally, is only valid when there are strong procedural protections that prevent unnecessary deprivations of liberty.
These cases make clear that the Due Process Clause of the Constitution protects all “persons” — regardless of immigration status.
Despite these constitutional protections, this law could subject two particularly vulnerable groups to prolonged, and potentially indefinite, detention. Arriving asylum seekers and long-term lawful residents reentering the country could be detained by the Department of Homeland Security while they contest their removability — without any opportunity to challenge their detention in a proceeding before a neutral decision-maker.
For individuals who cannot be removed to their country of origin, H.R.1932 could mean indefinite imprisonment, lacking essential independent judicial oversight. Criminal offenses are serious matters, but people who have paid their debt to society for old crimes as minor as passing a bad check or petty theft could face detention for the rest of their lives.
If this bill is enacted, immigrants face lifetime imprisonment not because of their own actions, but because the U.S. lacks diplomatic relations with their home countries.
It could also subject some of our society’s most vulnerable to the equivalent of life imprisonment without parole, at great cost to taxpayers — without proportionate benefits to public safety.
That’s bad policy which must not become law.
Laura Murphy is the director of the American Civil Liberties Union Washington legislative office.
Filed under: immigrant community, Law, Law Enforcement Tagged: | Clark v. Martinez, Department of Homeland Security, Due Process Clause, H.R. 1932, House Judiciary Committee, Lamar Smith, Zadvydas v. Clark