Liberty Bind: INS Must Make Sure Immigrants' Detention is Justified

Hyung Joon Kim lawfully immigrated to this country from Korea at the age of six, and has lived in Northern California for most of his life. He is now twenty-four-years old and faces possible deportation to a country he hardly knows. The INS argues it can incarcerate him pending resolution of his deportation proceedings, no matter how long those proceedings may last. The INS makes this argument even though it concedes Mr. Kim poses no danger to the community and is not a flight risk because of his substantial ties to the United States.

Mr. Kim's troubles began when he was convicted of two minor criminal offenses in 1996 and 1997: breaking and entering into a tool shed and shoplifting merchandise valued at $93. For these crimes, he served one and a half years in prison. He was released from California’s prison system in 1999. Because Mr. Kim's crimes made him susceptible to deportation, the INS incarcerated him immediately after his release. Although the INS concedes that detention is not necessary to ensure his availability for deportation or protect the community, the INS says that the immigration statute requires detention during his deportation proceedings.

The statute on which the INS relies, Section 236(c) of the Immigration and Nationality Act (codified at 8 U.S.C. 1226(c)), requires the detention of virtually every non-citizen who faces possible deportation because of a past criminal offense. Detention is required even for individuals convicted of crimes as minor as shoplifting or misdemeanors with sentences that may not involve jail time

Before Section 236(c) was enacted, the INS retained the discretion to determine whether individuals in deportation proceedings had to be detained to ensure their appearance at immigration proceedings or to protect against potential danger to the community. An immigration judge could consider individualized factors such as family ties, ties to the community, or possibility of relief from deportation. In 1996, however, Congress expanded the categories of crimes subjecting an individual to deportation. Congress also enacted the mandatory detention provision, disregarding the warnings of high-ranking INS officials that the provision went too far in requiring detention of even those who committed only minor crimes. An unprecedented number of individuals are now jailed under the provision, which imposes detention irrespective of their individualized circumstances.

The practical effects of mandatory detention on individuals like Mr. Kim can be devastating. Unable to work, individuals can neither provide financial support for their families nor hire attorneys to defend against the government's charges. Individuals are transferred and incarcerated in isolated and remote areas separated from family and other loved ones. The emotional and financial toll is so great that many give up meritorious claims against deportation, agreeing to permanent banishment rather than bear continued incarceration.

For many, the endured suffering is needless. In one instance, an individual was detained for 20 months before an immigration judge granted him asylum. In another case, an immigration judge dismissed the government's deportation charges against a decorated Vietnam veteran when the government failed to prove that he was not a U.S. citizen. Numerous other individuals who have been subjected to mandatory detention have ultimately obtained relief from deportation.

In Mr. Kim's case, the Ninth Circuit Court of Appeals affirmed a decision of the District Court for the Northern District of California, and struck down as unconstitutional the mandatory detention of lawful permanent residents like Mr. Kim. See Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002). In a unanimous decision written by Judge W. Fletcher, the Court held that due process requires individualized determinations of danger or flight risk before administrative detention is imposed, even for legal permanent residents in deportation proceedings. The Court rejected the government’s argument that Congress’s plenary power over immigration matters justifies mandatory detention without such individualized determinations.

The Kim Court followed the United States Supreme Court's decision last year in Zadvydas v. Davis, 533 U.S. 678 (2001). That case involved individuals who had been ordered deported, but who the INS was unable to deport because their country of origin would not accept their return. The Supreme Court observed that all people, citizens and non-citizens alike, are protected by the Due Process Clause of the Constitution. The Supreme Court rejected the INS’s contention that it could subject the individuals to indefinite detention, and recognized that due process limits the means by which the government carries out Congress's immigration policy decisions.

The courts of appeals that have addressed the constitutionality of mandatory detention since the Supreme Court's decision in Zadvydas have held that the mandatory detention provision violates the due process protections enshrined in the Fifth Amendment. In addition to the Ninth Circuit's decision in Kim, the Third Circuit struck down mandatory detention in Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001), emphasizing that the requirement of an individualized hearing "would infuse the detention process with the accuracy and precision that it currently lacks" and would impose minimal burden on the government. Other favorable rulings include Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002) and Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002).

At the heart of these judicial decisions lie basic notions of fairness: before resorting to the extreme of physical detention, the government must make certain that there is an individualized justification for such detention. Ensuring that an individual's liberty is not taken away without specific justification is a touchstone of due process protection.

The Supreme Court has never upheld a blanket detention policy that prohibits any determination of whether the government's purposes for detention are being served. In cases where the government seeks to deprive an individual of her liberty, the justifications for detention have always been established at appropriate proceedings. No less should be required in Mr. Kim's case and for lawful permanent residents like him.

Oral argument in Demore v. Kim (No. 01-1491) is scheduled for January 15, 2003. The ACLU represents Mr. Kim.

Liliana M. Garces is Staff Counsel of the Immigrants' Rights Project of the National Office of the ACLU, and Jayashri Srikantiah is Staff Counsel of the ACLU of Northern California.