AILA Doc No. 11052460 | Dated May 23, 2011
More jailing of immigrants is unconstitutional, unnecessary, and un-American
Washington, DC - On Tuesday, the House Subcommittee on Immigration Policy and Enforcement will hold a hearing to discuss objectionable legislation introduced by House Judiciary Chairman Lamar Smith. The bill, H.R. 1932, would strip important due process protections of harmless individuals by needlessly increasing the government's already broad authority to detain noncitizens. It would also attempt to undo the Supreme Court's decision in Zadvydas v. Davis that established the minimum standards designed to prevent the long-term, indefinite detention of noncitizens.
"The Supreme Court has made it clear that the Constitution does not permit indefinite detention under our laws. Congress cannot and should not attempt to circumvent the fundamental principles of due process. The Constitution protects all persons--citizens and noncitizens-from being locked-up indefinitely," said AILA President David Leopold. The draft bill would permit the government to jail, without limit, noncitizens who cannot be sent back to their home countries because those foreign governments have closed their doors to repatriation. "In America we simply do not lock people up and throw away the key if their country won't take them back. We are better than that," said Leopold.
"Chairman Smith's bill would also jail lawful permanent residents and people seeking asylum while they are waiting for the civil immigration courts to process their claims-that can be months or even years," said Leopold. "I have clients who were granted asylum by an immigration judge after fleeing horrible persecution in their home country but then waited years in a jail cell just because the government wanted to appeal the case. Americans want to protect public safety and protect our values of fairness and humanitarianism, not one or the other."
The Smith proposal would expand the government's power dramatically while simultaneously mandating the Department of Homeland Security (DHS) to jail people even when immigration officers deem it unnecessary. "The deprivation of liberty is a powerful tool that must be exercised carefully. DHS has exceptional latitude to detain noncitizens who are a flight risk or pose a danger to our communities. Those powers do not need further expansion," said Leopold. The Smith bill would also put further restrictions on detainees' ability to challenge their detention in court undermining basic due process that is fundamental to America's justice system.
Last year, DHS detained close to 400,000 individuals costing taxpayers nearly $2 billion. Many were detained without any opportunity for a hearing before a judge to decide whether their detention was needed. "That's not a smart way to enforce immigration law or keep Americans safe. DHS has other means besides detention, including bond, supervision, and more intensive tracking methods like ankle devices. Chairman Smith should not introduce this grossly overreaching proposal which is wasteful and inhumane. Detention should be the last resort, not a knee-jerk reaction," concluded Leopold.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
Cite as AILA Doc. No. 11052460.