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Zadvydas v. Davis, 533 U.S. 678 (2001) Court: United States Supreme Court Date: June 28, 2001* Petitioner: Kestutis Zadvydas Respondent: Christine G. Davis and Immigration and Naturalization Service *Decided together with Ashcroft, Attorney General, et al. v. Kim Ho Ma. Brief Case Summary: After a final removal order is entered, an alien ordered removed is held in custody during a 90-day removal period. If the alien is not removed in those 90 days, the post-removal-period detention statute authorizes further detention or supervised release. After being ordered deported based on his criminal record, efforts to deport Kestutis Zadvydas failed. When he remained in custody after the removal period expired, Zadvydas filed a habeas action. In granting the writ, the District Court reasoned that his confinement would be permanent and thus violate the Constitution. In reversing, the Fifth Circuit Court of Appeals concluded that Zadvydas' detention did not violate the Constitution because eventual deportation was not impossible. Conversely, in ordering Kim Ho Ma's release, the District Court held that the Constitution forbids post-removal-period detention unless there is a realistic chance that an alien will be removed, and that no such chance existed here because Cambodia has no repatriation treaty with the United States. In affirming, the Ninth Circuit Court of Appeals concluded that detention was not authorized for more than a reasonable time beyond the 90-day period. Issue: Does the post-removal-period statute authorize the Attorney General to detain a removable alien indefinitely beyond the 90-day removal period? Held: No. "the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States" and "does not permit indefinite detention" (emphasis added). "Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit 'reasonable time' limitation, the application of which is subject to federal court review," wrote Justice Breyer. Discussion: In a 5-4 decision penned by Justice Breyer and joined by Justices Stevens, O’Connor, Souter, and Kennedy, the Court reversed the Fifth Circuit and upheld the Ninth Circuit. The Court stated that a statute permitting indefinite detention would raise serious constitutional questions. Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause. Government detention violates the Clause unless it is ordered in a criminal proceeding with adequate procedural safeguards or a special justification outweighs the individual's liberty interest. The instant proceedings are civil and assumed to be nonpunitive, and the Government proffers no sufficiently strong justification for indefinite civil detention under this statute. The first justification-preventing flight-is weak or nonexistent where removal seems a remote possibility. Preventive detention based on the second justification-protecting the community-has been upheld only when limited to specially dangerous individuals and subject to strong procedural protections. When preventive detention is potentially indefinite, this dangerousness rationale must also be accompanied by some other special circumstance, such as mental illness, that helps to create the danger. The civil confinement here is potentially permanent, and once the flight risk justification evaporates, the only special circumstance is the alien's removable status, which bears no relation to dangerousness. Moreover, the sole procedural protections here are found in administrative proceedings, where the alien bears the burden of proving he is not dangerous, without (according to the Government) significant later judicial review. The Constitution may well preclude granting an administrative body unreviewable authority to make determinations implicating fundamental rights. The Court further stated that once an alien enters the country, the legal circumstance change, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent. Nor do cases holding that, because Congress has plenary power to create immigration law, the Judicial Branch must defer to Executive and Legislative Branch decision making in that area help the Government, because that power is subject to constitutional limits. Finally, the aliens' liberty interest is not diminished by their lack of a legal right to live at large, for the choice at issue here is between imprisonment and supervision under release conditions that may not be violated. An alien’s liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, the Constitution permits detention that is indefinite and potentially permanent. "Zadvydas v. Davis." Oyez, www.oyez.org/cases/2000/99-7791. Accessed 8 Sep. 2020. “Zadvydas v. Davis.” Justia, www.supreme.justia.com/cases/federal/us/533/678/. Accessed 14 Sep. 2020.


Demore v. Hyung Joon Kim, 538 U.S. 510 (2003) Court: United States Supreme Court Date: April 29, 2003 Petitioner: Charles Demore, District Director, San Francisco District of Immigration and Naturalization Service, et al. Respondent: Hyung Joon Kim Brief Case Summary: Under the Immigration and Nationality Act, 8 USC § 1226(c), the Attorney General shall take into custody any alien who is removable from this country because he has been convicted of one of a specified set of crimes, including an aggravated felony. After Hyung Joon Kim, a lawful permanent resident alien, was convicted in state court of first-degree burglary and petty theft with priors, the INS charged him with being deportable and detained him pending his removal hearing. Kim filed a habeas corpus action challenging section 1226(c) on the ground that his detention violated due process because the INS had made no determination that he posed either a danger to society or a flight risk. The District Court granted Kim's petition. In affirming, the Court of Appeals concluded that the INS had not provided a justification for no-bail civil detention sufficient to overcome a permanent resident alien's liberty interest. Issue: Does the Immigration and Nationality Act, which provides for no-bail, civil detention, violate a lawful permanent resident alien's liberty interest? Held: No. In an opinion delivered by Chief Justice William H. Rehnquist, the Court held, 6-3, that the Immigration and Nationality Act does not deprive the federal courts of jurisdiction to grant habeas relief to aliens challenging their detention under section 1226(c) and, 5-4, that detention during removal proceedings is a constitutionally permissible part of that process. Discussion: Chief Justice Rehnquist wrote that Congress, concerned that deportable criminal aliens may fail to appear for their removal hearings, has the authority to require that persons be detained for the brief period necessary for their removal proceedings. The Court distinguished this case from Zadvydas v. Davis, 533 U.S. 678 (2001) by noting that the aliens in that case were challenging their detention following final orders of deportation where removal was “no longer practically attainable,” thus detention there did not serve its purported immigration purpose. Here, the statute governed detention of deportable criminal aliens pending their removal proceedings. The Court reasoned that such detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings. The Court further distinguished the present case from Zadvydas in noting that the detention at issue here was of a much shorter duration than the “indefinite” and “potentially permanent” detention at issue in the prior case. Justice Sandra Day O'Connor, joined by Justices Antonin Scalia and Clarence Thomas, dissented from the first holding, reasoning that the Act deprives federal courts of jurisdiction in such a case. Justice David H. Souter, joined by Justices John Paul Stevens and Ruth Bader Ginsburg, and Justice Stephen G. Breyer dissented from the Court's second holding. The minority argued against the Court's approval of lengthy mandatory detention. "Demore v. Kim." Oyez, www.oyez.org/cases/2002/01-1491. Accessed 14 Sep. 2020.


Jennings v. Rodriguez, 138 S.Ct. 830 (2018) Court: United States Supreme Court Date: February 27, 2018 Petitioners: David Jennings, et al. Respondents: Alejandro Rodriguez, et al. Lower Court: U.S. Court of Appeals for the 9th District Rodriguez v. Robbins, 804 F.2d 122 (9th Cir. 2015) cert. granted, 136 S.Ct. 2489 (2016) Brief Case Summary: Alejandro Rodriguez, a Mexican citizen and lawful U.S. permanent resident since 1987, was detained in 2004 while the Government sought to remove him, pursuant to section 1226 of Title 8 of the U.S. Code, which states that under a warrant by the Attorney General immigrants may be arrested and detained while their case status is decided. While still litigating his removal, in May 2007, Rodriguez challenged this justification through habeas corpus, claiming he had a right to a bond hearing to determine whether his continued prolonged detention according to 8 U.S.C. § 1225 remained justified. The District Court entered a permanent injunction in line with the relief requested. The United States Court of Appeals for the Ninth Circuit affirmed providing that detained immigrants had a statutory right to a periodic hearing every six months and that detention beyond the initial six month period is permitted only if proven by clear and convincing evidence that further detention is justified. The United States Supreme Court reversed the judgment and remanded the case in a plurality opinion. Issue: Whether 8 U.S.C. §§ 1225 and 1226 provide that detention is prohibited beyond the initial 6-month period, absent periodic bond hearings to determine whether retention is justified. Held: No. Detained immigrants do not have a statutory right to periodic bond hearings. The judgment was reversed, and the case was remanded. Discussion: In 2007, the ACLU filed a lawsuit in California on behalf of Alejandro Rodriguez, who had been detained for three years without a bond hearing while he fought the government’s attempt to deport him over a conviction for “joyriding” in 1998 from when he was a teenager and possession of a controlled substance in 2003. He argued that this violated the Immigration and Nationality Act or the Due Process Clause of the Fifth Amendment. His case eventually became a class action lawsuit on behalf of all individuals held under mandatory detention. The Ninth Circuit ruled that the government was required to provide individualized bond hearings every six months, during which the government was required to show a danger to the community or a flight risk to justify continued detention. The Court of Appeal’s decision was reversed by the U.S. Supreme Court in a plurality opinion after granting a writ of certiorari in June 2016, holding that the Ninth Circuit had incorrectly applied the cannon of constitutional avoidance to find a 6-month limit for bond hearings. Justice Alito wrote for the majority and concluded that no provision of 8 U.S.C. § 1225 limits the length of detention to six months, or suggests the length of detention should be a factor when deciding on the release of a detained immigrant. The Court further held that detention is not barred by any time limit, and it may end prior to the conclusion of removal proceedings only if the immigrant was released for witness protection purposes. The Supreme Court did not address the constitutional due process claims and instead remanded the case to the Ninth Circuit.


DIGNITY NOT DETENTION ACT The Dignity Not Detention Act (“DNDA”), became law in California on October 5, 2017, when Governor Jerry Brown signed Senate Bill (“SB 29"), which stopped the expansion of forprofit immigration detention facilities in California. The purpose of the DNDA was to halt the expansion of private and public immigration jail growth, as well as increase transparency and accountability in all immigration detention centers. The DNDA provides that it is the intention of the Legislature that this bill declare that California does not tolerate profiting from the incarceration of Californians held in immigration detention and the state’s desire is to ensure the just and humane treatment of its most vulnerable people and meet or exceed the federal national standards. The DNDA restricts any new business deals between California and private immigration detention facility companies, halts plans to bolster private facilities, and requires public input for future building permits. It requires a 180 day notice before issuing a permit for an immigration detention facilities and holding at least two public forums to allow public input and comment. This law prohibits cities and counties from entering into new, or modifying existing contracts with for-profit private prison companies with the purpose of expanding immigration detention. Under this law, no city, county, or law enforcement agency in California may enter into a contract with a private detention facility unless there was an existing contract in place by January 2018. It effectively prevents the growth of private immigrant prisons in California. This includes contracts for both adult and child detention facilities. Under California’s 2017 budget bill, Assembly Bill 103 (“AB 103") its Attorney General was given the power, and $1 Million per year, to monitor all California immigration detention facilities, both public and private, requiring the California Department of Justice (“DOJ”) to perform annual audits of the detention centers. This law also requires all California facilities to comply with the California Public Records Act that requires all state and local agencies to make their records available for public inspection. The California legislature has introduced multiple bills to shield undocumented immigrants from federal authorities and improve conditions for detainees. These measures were enacted in response to the current administration’s efforts to expand detention centers and ramp up deportation of immigrants across the country. The prior administration’s plan to scale back private prisons was rescinded and mandated at least 34,000 beds daily to detain people, fueling the profit-driven system by private prison corporations. The United States Immigration and Customs Enforcement (“ICE”), the interior enforcement agency of the United States Department of Homeland Security (“DHS”) is the only law enforcement agency with such a quota. California’s SB 29 was the first bill in the country to put a moratorium on immigration detention expansion and give a state agency the power to monitor federal immigration detention. The bill also require facilities holding immigrants to abide by ICE standards for lock-ups, including providing access to medical treatment, honoring the right to the grievances, and allowing visitation by attorneys and loved ones.

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