Monday, September 5, 2011
A three-judge panel of the Third Circuit ruled last week in Diop v. ICE that the government's nearly 3-year detention of a person who was removable from the country while his case worked its way through the immigration system violated the Due Process Clause.
The case involved the government's detention authority under 8 U.S.C. Sec. 1226(c), which permits the government to detain and hold an alien without bond when the alien "is deportable by reason of having committed," among other crimes, a crime "involving moral turpitude" or one "relating to a controlled substance." This means that the federal government could hold a deportable alien indefinitely and without bond while the case is pending in the immigration and federal courts. (In the ordinary case--one involving an alien who did not commit a crime that would make him or her deportable--an alien gets a bond hearing and may be released on bond while his or her case moves forward.)
Diop was detained under the provision, without a bond hearing, for nearly three years while his case worked through the immigration courts and the federal courts. He was finally released after 1,072 days in detention--after four rulings by an immigration judge, three rulings by the Board of Immigration Appeals, a state court ruling on his 1995 conviction and a subsequent appeal to the state intermediate appellate court, a ruling by a federal district judge, and an appeal to the Third Circuit.
The Third Circuit said this violated due process. It drew on Justice Kennedy's concurrence in Demore v. Kim:
Justice Kennedy's opinion provides helpful guidance on how to interpret the Demore opinion. Under the Supreme Court's holding, Congress did not violate the Constitution when it authorized mandatory detention without a bond hearing for certain criminal aliens under Section 1226(c). This means that the Executive Branch must detain an alien at the beginning of removal proceedings, without a bond hearing--and may do so consistent with the Due Process Clause--so long as the alien is given some sort of hearing when initially detained at which he may challenge the basis of the detention. However, the constitutionality of this practice is a function of the length of detention. At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of Section 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community.
Op. at 18. In other words, Section 1226(c) is facially constitutional, but, as applied, detention under its authority might run up against the Due Process Clause when that detention fails to serve the purposes of the law. And the courts owe the Executive little deference in determining that point: "courts reviewing petitions for writ of habeas corpus must exercise their independent judgment as to what is reasonable." Op. at 21.
The court also ruled that Diop had standing, despite his release, because his detention was capable of repetition yet evading review.