FEDERAL JUDGE DECLARES INDEFINITE DETENTION UNCONSTITUTIONAL

Since the implementation in October 1998 of a requirement that the INS detain certain criminals, indefinite detention has become one of the most litigated immigration issues.  Under the law, the INS is to detain aliens convicted of certain crimes until they are deported.  For nationals of countries with which the US does not have repatriation agreements, the law has resulted in detention without any foreseeable end.  The results of lawsuits challenging indefinite detention have been fairly evenly split.  Some judges find the practice constitutional, and others believe that it violates the detainees’ constitutional rights.  A federal district court judge in Los Angeles is the latest to join those who have ruled that indefinite detention is unconstitutional.

This case started with petitions for habeas corpus filed by a number of people in indefinite detention.  All of the cases were consolidated so that one judge could render a single decision that would be applied to each case.

The INS first argued that the detainees had not exhausted all of the remedies provided by the INS.  The judge rejected this argument.  Usually administrative remedies must be exhausted before a petition for a writ of habeas corpus can be filed, but there is an exception if pursuing that remedy would not provide an opportunity to present the constitutional arguments.  INS regulations do allow an indefinite detainee to seek release,

and to appeal an unfavorable decision to the Board of Immigration Appeals.  The judge found these procedures insufficient.  First, the judge found that the regulations and accompanying INS policy statements did not provide due process.  Second, the INS’ failure to provide meaningful review when requested violated the detainees right to procedural due process.

There are two types of due process – procedural and substantive.  Procedural due process refers to the procedures that must be observed before government action can be taken.  Substantive due process deals with actions that the government simply cannot take, regardless of the procedural protections available.  The court in this case found that the procedures for indefinite detention were inadequate, violating the detainees’ right to procedural due process.  It also found that indefinite detention violated substantive due process by denying the detainees their fundamental right to liberty.

Substantive due process inquiries are guided by the type of private interest at issue.  A person’s interest in being free from confinement is fundamental.  Therefore, government actions to deprive a person their liberty must be “narrowly tailored” to further a “compelling government interest.”  In the context of indefinite detention, this means that the detention cannot be for purposes of punishment, but must be designed to meet a regulatory goal.  The INS gave three goals it was trying to meet through indefinite detention:  first, to ensure that the deportation did occur; second, to prevent flight before the deportation occurs; and third, to protect the public.  The court found that only the first goal was permissible for the INS because it was the only one related to immigration, and that the second two were only incidentally related to the first. 

The court found that when deportation is unlikely to occur, automatic detention violates substantive due process.  When deportation is unlikely, the only way to continue detention is by placing the alien in involuntary commitment proceedings.

When there is still a possibility that deportation will occur, the INS can continue detention, but only if it provides sufficient procedural protections.  The judge outlined four protections that must be provided in a determination to continue detention.  First, the INS must bear the burden of proving the need for continued detention by clear and convincing evidence.  It may use evidence of flight risk and danger to the community in this hearing.  Second, the detainee is entitled to the assistance of an attorney at the hearing.  Third, the detainee has the right to examine the evidence against them, the right to cross-examine witnesses, and to present evidence and witnesses of their own.  Fourth, if the government cannot show the need for continued detention, release must be granted.  This release may be made contingent on certain requirements, such as the posting of a bond and reporting periodically to the INS, to ensure they remain available for deportation, if and when it occurs. 

This decision means that the cases of over 130 detainees being held in this district must be given hearings on whether their detention should be continued.  The INS has not announced whether it will appeal, but it is unlikely they will because the same issue is scheduled to be heard by the Ninth Circuit later this month.  Cases from federal court in Los Angeles are appealed to the Ninth Circuit.