Due Process and Temporal Limits on Mandatory Immigration Detention
Farrin R. Anello
Seton Hall University School of Law
August 13, 2013
Hastings Law Journal, Forthcoming
The mandatory immigration detention law that Congress passed in 1996 has imposed stark costs on detainees, their families, and the government. Section 236(c) of the Immigration and Nationality Act (INA) requires that the Department of Homeland Security (“DHS”) take into custody any individual who is removable based upon one of a wide range of offenses, including misdemeanors such as simple possession of marijuana and petit theft. Mandatory detention dissuades people from pursuing even meritorious challenges to removal, since filing applications for relief or appeals prolongs detention. Mandatory detention has also limited DHS’s discretion in determining whom to detain and increases the overall costs of detention.
This type of broad, categorical detention is not easily reconciled with the U.S. Supreme Court’s decision in Zadvydas v. Davis, which extended to immigration detention the strong due process limits the Court has recognized on other forms of civil detention. Just two years after Zadvydas, in Demore v. Kim, the Court rejected an as-applied due process challenge to the mandatory immigration detention statute. The Demore Court did not address the United States v. Salerno line of civil detention cases, nor the fact that mandatory civil detention has no peacetime precedent. Lower courts have struggled to give effect to both Zadvydas and Demore. All three circuits to have addressed the issue have sought to avoid a due process problem by construing ambiguous language in the mandatory detention statute to provide temporal limits on mandatory detention. However, they have not reached consensus on how to define these limits.
Looking to doctrine, an analysis of the practical effects of the rules and standards implemented by the circuit courts, and institutional features of the removal system, I argue that the mandatory detention statute should be construed to govern detention for no longer than six months, after which time a bond hearing should be required. The Ninth Circuit has recently adopted this approach. I contrast this approach with a body of recent decisions from the Third and Sixth Circuits, and explain why a six-month rule better comports with Demore, Zadvydas, and due process doctrine. I further argue that such a clear rule best addresses the particular concerns raised by an overloaded administrative system in which most litigants are pro se and appear regularly before immigration judges.
Accepted Paper Series
Date posted: November 17, 2012 ; Last revised: August 13, 2013
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