Friday, November 30, 2012

Immigration Article of the Day: Toward Temporal Limits on Mandatory Immigration Detention by Farrin R. Anello


Toward Temporal Limits on Mandatory Immigration Detention by Farrin R. Anello, University of Miami School of Law November 15, 2012

Abstract: 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 requires that the Department of Homeland Security take into custody any individual who is removable based upon one of a wide range of offenses. Mandatory detention dissuades many individuals from pursuing even meritorious challenges to removal, since filing applications for relief or appeals prolongs detention. Mandatory detention has also limited the Department of Homeland Security’s discretion in determining whom to detain and has required hundreds of thousands of dollars in appropriations to detain individuals who pose no individualized danger or flight risk. This type of broad, categorical detention is not easily reconciled with the Supreme Court’s decision in Zadvydas v. Davis, which held that indefinite detention under even a discretionary post-final order detention statute was not authorized by statute because it would raise serious due process concerns. Yet just two years later, in Demore v. Kim, the Court rejected an as-applied due process challenge to the mandatory immigration detention statute. In reaching this decision, the Demore court did not engage with well-established jurisprudence on due process and civil detention. Notably, however, the Demore majority expressly distinguished Zadvydas, which is rooted in this body of jurisprudence. In light of its efforts to distinguish Zadvydas, including its emphasis on the “brief” period of pre-removal order mandatory detention, Demore must be viewed as having a very limited holding. This article revisits Demore in light of recent decisions from the Third, Sixth, and Ninth Circuits. To avoid a due process problem, these circuits have construed the mandatory detention statute as not permitting "prolonged" or "unreasonably prolonged" mandatory detention. They have adopted different approaches to determining when detention ceases to be mandatory and a bond hearing becomes required. Based upon civil detention jurisprudence, practical considerations, and an analysis of circuit and district court decisions, I argue that INA section 236(c) should be construed to permit mandatory detention for only six months, after which time a bond hearing should be required.


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