SCOTUS Asks: What Due Process Is Required in Immigration Hearings?

 

Jennings v RodriguezThis past week in Jennings v. Rodriguez, the Supreme Court of the United States waded into an immigration thicket from which there is no easy escape. It is commonplace that many aliens in the United States are subject to deportation for a variety of reasons. Some of these aliens must be detained in the US because they are stateless or because the US does not have a repatriation treaty with their home country. Other persons are detained because they are subject to a criminal record.

In many cases the detentions are extended as aliens play for time in order to obtain evidence to bolster their case for remaining in the US. In a large percentage of cases, the detentions can easily be justified on the grounds that the aliens in question are a flight risk or pose a risk for public safety. In individual cases, it is often hard to know which individuals fall into which categories, so that it is sometimes incumbent to hold individuals in custody for long periods of time until the needed factual records can be assembled.

At some point, the detention of any person runs into challenges under the Due Process Clause to the Fifth Amendment, which imposes some limitation on indefinite detention prior to the resolution of a case. Under current rules, roughly speaking, all persons are entitled by statute to a hearing upon their initial detention and are offered an additional one in the event of material changes in circumstances.

But the question then arises as to what should be done in the case of a prolonged detention when no such circumstances exist. Could a prisoner be required to remain in jail for 20 years, unaware of how matters are going? The individual cases can be harrowing, to say the least.

The named plaintiff, Alejandro Rodriguez, is a lawful permanent alien in the US who was detained for three years when the government tried to deport him for, among other things, illegal possession of drugs. Another complainant was an asylum applicant, who had been a torture victim in Ethiopia. His detention was based on part of the mistaken belief that he was from Somalia. It is perfectly clear that virtually every person detained has a story of similar confusion and woe. It is also far from clear whether it makes sense to want to deport individuals for various infractions, given the massive dislocation in their lives and the heavy costs that it imposes on the American immigration system.

It was against this worrisome backdrop that the Court of Appeals for the Ninth Circuit looked at an incredibly complicated statutory scheme. It then cut through the complexities and imposed a one-size-fits-all rule that held that all aliens — and at any time there can be tens of thousands inside the system—need to have an automatic update of their status from some government official every six months, notwithstanding the evident cost of running so vast a program.

Indeed, according to Rodriguez the claim is that the government must release those aliens whenever it is unable to prove by a preponderance of the evidence that the detention remains necessary. The issue before the Supreme Court was whether under both the immigration laws and the Constitution, this maneuver is appropriate.

The eight members of the Court struggled with these issues, and the result is likely a split verdict. It has long been established under American law that the immigration system is largely insulated from the usual requirements of due process on the ground that the suspects are immigrants. As the Court said in the 1953 decision in Shaughnessy v. Mezei, “Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”

The logic has always been that aliens are located in the US as a matter of sufferance and thus cannot complain if they are dealt with harshly by the law. Yet on the other side of the equation, the Due Process Clause applies with equal force to aliens as to citizens, so that it is easy, as Justices Kagan and Sotomayor suggested, to insist that at some point an alien who has been subject to indefinite detention should be afforded some right of relief. The government suggested that a writ of habeas corpus might come into play, but that filing that petition is of course far more onerous than a built-in system that affords a review as a matter of right.

On the state of play in the individual case, there is some reason to think that this weighty matter will have to wait until the ninth justice arrives, given the substantial likelihood of a 4-4 split along the familiar liberal/conservative axis. At that point, it appears, the Ninth Circuit decision would be given effect, with enormous ramifications, especially if, as may be the case, the new Trump administration decides to speed up the rate of deportation of illegal aliens through the various administrative programs.

But at the same time, it is notoriously difficult for any court to enforce any remedy that requires government officials to spend money that has not been appropriated to a particular process, such that it must release those individuals for whom it cannot meet its burden of proof. It seems like too great a departure from existing practices to be put into place by a Court of Appeals. Nonetheless, at the very least the Ninth Circuit decision could easily spur hundreds of individual cases asking for just that relief, knowing that it may well take months or years to wind themselves through the system.

Anyone who looks at the sorry state of affairs in the immigration system should understand that the entire process needs a stem-to-stern overhaul if it is to provide a modicum of protection to people who are brought within its scope. The simple truth here is that that review has to cover both the substantive grounds for removal of different classes of aliens — illegal arrivals and long-term legal resident aliens obviously present different problems — that cannot be done without legislative action that takes into account the budgetary and the human rights issues, as well as the traditional concerns with safety and flight.

The lesson that one takes away from this case is that the outcome of the lawsuit is less important than a hard look at the immigration system, which should be done before any effort is made to increase the rate of deportations for whatever reason. It is all a tall order, given the huge social divisions on the issue. But there is no way to pass the buck.

Cases like Jennings matter. Sensible institutional reform matters far more.

Published in Domestic Policy, Immigration, Law
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There are 11 comments.

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  1. Aaron Miller Member
    Aaron Miller
    @AaronMiller

    Is a “permanent alien” basically a 2nd-class citizen? I’m reading that such a person receives a green card and can become a citizen after a delay. Is that green card identical to those of people who entered lawfully?

    Amen on finally addressing the whole mess legislatively. I doubt it will happen, but here’s hoping!

    • #1
  2. goldwaterwoman Thatcher
    goldwaterwoman
    @goldwaterwoman

    Just curious. If I were an illegal immigrant in Mexico, and they discovered me after a year or so, what would the Mexican  government do with me?

    • #2
  3. David Wilder Thatcher
    David Wilder
    @DavidWilder

    Having dealt with INS and legally immigrating, it seems to me that the system is upside down.  Persecute the legal and protect the illegal.

    • #3
  4. MarciN Member
    MarciN
    @MarciN

    Richard Epstein: Anyone who looks at the sorry state of affairs in the immigration system should understand that the entire process needs a stem-to-stern overhaul if it is to provide a modicum of protection to people who are brought within its scope. The simple truth here is that that review has to cover both the substantive grounds for removal of different classes of aliens — illegal arrivals and long-term legal resident aliens obviously present different problems — that cannot be done without legislative action that takes into account the budgetary and the human rights issues, as well as the traditional concerns with safety and flight.

    Jeb Bush has written a book describing a comprehensive immigration reform program: Immigration Wars: Forging an American Solution. As I understand it, he wrote this book as part of his preparation for his candidacy this past year.

     

    • #4
  5. wilber forge Inactive
    wilber forge
    @wilberforge

    goldwaterwoman:Just curious. If I were an illegal immigrant in Mexico, and they discovered me after a year or so, what would the Mexican government do with me?

    Arrest you, then put you in jail until deported after they confiscate all your stuff.

    Trust me, as after retiring and spending most of my time here, it is most wise to respect the Host countries laws. Stern albeit reasonable to retain the countries cohesion. Go figure that notion.

    • #5
  6. Valiuth Inactive
    Valiuth
    @Valiuth

    goldwaterwoman:Just curious. If I were an illegal immigrant in Mexico, and they discovered me after a year or so, what would the Mexican government do with me?

    Why would it make a difference? The poor behavior of other countries should not keep us from proper behavior. Liberty is an actual human right, as fundamental as free speech and free religion, if our government is to deny this to anyone (citizen, legal and illegal alien) it must do so in a consistent and equitable manner, the same way it would treat any other such right. An expeditious settlement of the case is in the interest of all parties. Simply keeping people locked up without some means of quick resolution (trial, hearing, etc.) is tyrannical, and inefficient.

    • #6
  7. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Non citizens should have less protections than citizens.

    • #7
  8. goldwaterwoman Thatcher
    goldwaterwoman
    @goldwaterwoman

    Valiuth: Why would it make a difference? The poor behavior of other countries should not keep us from proper behavior.

    It makes a difference only because every country has immigration laws. It’s nothing new. We can usually stay 90-180 days in many countries with just an American passport. To stay longer requires either a work visa and/or proof that you can support yourself. I don’t understand why we make such a big deal over something that’s pretty standard all over the world.

    • #8
  9. Z in MT Member
    Z in MT
    @ZinMT

    The best choke points for illegal immigration are the border, exit and entry systems, and employment enforcement. You make it difficult to get in, stay and work illegally in the US and 97% of the immigration problem will be solved.

    That being said even illegal immigrants in the US should enjoy the same due process rights as everybody else. Deportation does require due process, but deportation is not a criminal proceeding. Which means it doesn’t require a trial with a judge. Due process in this case is the chance to prove one’s permission or right (if they were born here) to stay in this country, and to apply for appeal (from one’s home country). The truth is that once an illegal immigrant gets established in the US, forcible deportation will be a difficult process. That is why it is important to prevent them from getting established in the first place, and making it difficult economically to stay.

    • #9
  10. Kozak Member
    Kozak
    @Kozak

    goldwaterwoman:Just curious. If I were an illegal immigrant in Mexico, and they discovered me after a year or so, what would the Mexican government do with me?

    What happens to illegal immigrants in Mexico?

    Under the Mexican law, illegal immigration is a felony, punishable by up to two years in prison. Immigrants who are deported and attempt to re-enter can be imprisoned for 10 years. Visa violators can be sentenced to six-year terms. Mexicans who help illegal immigrants are considered criminals.

    • #10
  11. Kozak Member
    Kozak
    @Kozak

    MarciN:

    Richard Epstein: Anyone who looks at the sorry state of affairs in the immigration system should understand that the entire process needs a stem-to-stern overhaul if it is to provide a modicum of protection to people who are brought within its scope. The simple truth here is that that review has to cover both the substantive grounds for removal of different classes of aliens — illegal arrivals and long-term legal resident aliens obviously present different problems — that cannot be done without legislative action that takes into account the budgetary and the human rights issues, as well as the traditional concerns with safety and flight.

    Jeb Bush has written a book describing a comprehensive immigration reform program: Immigration Wars: Forging an American Solution. As I understand it, he wrote this book as part of his preparation for his candidacy this past year.

    An act of love no doubt.

    • #11
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