Dean Johnson writes:
“Detention as a tool of immigration enforcement has increased dramatically following immigration reforms enacted in 1996. Two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.
How the Supreme Court reconciles these dueling decisions will no doubt determine the outcome in Jennings v. Rodriguez. This case involves the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees. The court of appeals further mandated that, in order to continue to detain an immigrant, the government must prove that the noncitizen poses a flight risk or a danger to public safety.”
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Read the rest of Dean Johnson’s analysis at the link.
This is huge in human rights. A “W” for the Administration, which many observers view as likely with the advent of Justice Gorsuch, will essentially “Green Light” the Trump-Sessions-Miller plan to construct the “New American Gulag.” The Gulag’s “prisoners” will be noncriminal migrants (many of them women fleeing violence in the Northern Triangle) whose only “crime” is to assert their rights for due process and justice under our laws.
The concept that migrants have rights is something that sticks in the craws of the White Nationalists. So, punishing them for asserting their rights (with an objective of coercing them into giving up their rights and leaving “voluntarily”) is the next best thing to denying them entirely (which the Administration routinely does whenever it thinks it can get away with it — and the Article IIIs have largely, but not entirely, been asleep at the switch here).
And, make no mistake about it, as study after study has shown, the “conditions of civil detention” in the Gulag are substandard. So much so that in the last Administration DHS’s own study committee actually recommended an end to private immigration detention contracts and a phasing out of so-called “family detention.” The response of the Trump White Nationalists: ignore the facts and double down on the inhumanity.
Based on recent news reports, DHS immigration detainees die at a rate of approximately one per month. And many more suffer life changing and life threatening medical and psychiatric conditions while in detention. Just “collateral damage” in “Gonzo speak.”
Immigration detainees are often held without bond or with bonds that are so unrealistically high that they effectively amount to no bond. And, in many cases (like the one here) they are denied even minimal access to a U.S. Immigration Judge to have the reasons for detention reviewed.
Plus, as I reported recently, across the nation DHS is refusing to negotiate bonds for those eligible. They are also appealing Immigration Judge decisions to release migrants on bond pending hearings, apparently without any regard to the merits of the IJ’s decision. In other words, DHS is abusing the immigration appeals system for the purpose of harassing migrants who won’t agree to waive their rights to a due process hearing and depart!
Also, as I pointed out, in the “no real due process” world of the U.S. Immigration Courts, the DHS prosecutors can unilaterally block release of a migrant on bond pending appeal. In most cases this means that the individual remains in detention until the Immigration Judge completes the “merits hearing.” At that point the BIA determines that the DHS bond appeal is “moot” and dismisses it without ever reaching the merits. Just another bogus “production” statistic generated by EOIR!
Oh, and by the way, contrary to “Gonzo” Session’s false and misleading rhetoric on so-called “Sanctuary Cities,” one of the things jurisdictions that rationally choose to limit cooperation with DHS enforcement to those with significant criminal records are doing is protecting their law-abiding, productive migrant residents and migrant communities from the patent abuses of the “American Gulag.” “Gonzo policies” predictably drive reasonable people to take protective actions.
But, some day, the bureaucrats, complicit judges (particularly life-tenured Article III Judges, like the Supremes), reactionary legislators who turn their backs on human suffering, and misguided voters who have allowed this human rights travesty to be perpetrated on American soil will be held accountable, by the forces of history if nothing else.
PWS
09-28-17