The following appeared in The Record on May 11, 2003. It was written by Parastou Hassouri, ACLU-NJ Immigrant Rights Specialist.
The Federal government is increasingly using incarceration to deal with immigrants. Three new developments that undermine immigrants’ right to basic due process reinforce this policy. In all three cases, a detained immigrant’s right to a bond hearing is at stake.
First, in a decision two weeks ago, Demore v. Kim, the U.S. Supreme Court held that the federal government could detain non-citizens, including lawful permanent residents, without bail during deportation proceedings.
Demore v. Kim concerns the case of Hyung Joon Kim, who in 1984, as a six year old, immigrated to the United States from South Korea with his family. As an adult, Kim received two convictions for breaking and entering a tool shed and shoplifting, he was placed in deportation proceedings and classified as an “aggravated felon,” a category drastically expanded as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), one of a series of harsh anti-immigrant measures passed in 1996.
Once removed from the United States as an “aggravated felon,” IIRAIRA permanently bars Mr. Kim’s reentry, regardless of the fact that he has lived here since age six.
Four lower courts had held that the blanket denial of bond, without an individualized hearing to determine whether the detainee poses a danger to society or is a flight risk, constitutes a violation of the Due Process Clause. The Supreme Court disagreed.
The Kim decision will affects hundreds, if not thousands of families whose members are currently detained by the Bureau of Immigration and Customs Enforcement (“BICE”), the division of the Department of Homeland Security now charged with enforcing immigration laws. Many of these immigrants have already served their criminal sentences and have paid their debt to society.
With the Kim ruling, they face further time in prison even though they have committed no further offense. They can be held, regardless of their likelihood of success in deportation proceedings, regardless of the fact that they may have been convicted of low-level crimes and pose no danger whatsoever to society, and regardless of family ties—including U.S. citizen children—that make them unlikely to be a flight risk. The Kim decision simply takes all discretion and casts it aside, in favor of a rigid and blanket application of a rule, no matter how irrational and arbitrary.
The Kim case comes on the heels of a decision by Attorney General Ashcroft, authorizing the indefinite detention, without bond, of undocumented migrants who arrive in the United States by sea. An Immigration Judge had granted bond to asylum seeker David
Joseph, one of a boatload of Haitians captured in October 2002, and the decision was upheld on appeal. But Mr. Ashcroft reversed the ruling. Citing national security concerns, he stated that the denial of bond in such cases does not violate any due process rights or international law.
Third, in March 2003, the Department of Homeland Security announced an initiative, “Operation Liberty Shield,” which mandates the detention of asylum seekers from 33 countries where certain terrorist groups operate. This blanket policy of detaining asylum seekers was widely criticized by a number of organizations, including the ACLU, Amnesty International and the Lawyers Committee for Human Rights.
Authorities often justify these policies on grounds of national security and their concern about the threat of foreign terrorists is understandable. However, even in days of heightened security, we have a vital interest in assuring that this country continues to be a haven for those fleeing persecution in their home countries. We must continue to ask whether and to what extent detention without review by a court ever advances our security interests.
Blanket immigration detention procedures, which apply across the board rather than on a case-by-case basis, undermine principles of due process and fundamental fairness. Individualized bond hearings would adequately allow the government to establish whether an asylum applicant or other immigration detainees should continue to be detained.
Interestingly, Chief Justice Rehnquist, author of the Kim decision, notes, “in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” That the rules apply to non-citizens make them no less acceptable.Freedom from arbitrary detention is at the core of the liberty that the U.S. Constitution protects. It is meaningless unless it protects all persons in the United States.