Let's use a scalpel with detention bill - Houston Chronicle

Let's use a scalpel with detention bill - Houston Chronicle

By ASA HUTCHINSON

Published 09:10 p.m., Friday, September 23, 2011

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The U.S. House Judiciary Committee recently passed legislation to clarify the authority of immigration officials to detain criminal aliens who have been ordered removed from the United States. This well-intentioned bill, known as the Keep Our Communities Safe Act (H.R. 1932), is designed to protect communities from the relatively small number of violent individuals who are in the country unlawfully. Unfortunately, the bill uses a sledgehammer to do a job best suited for a scalpel. It authorizes indefinite detention of noncitizens who cannot be removed because no country will accept them, while denying those detained an opportunity for meaningful review of their detention. In so doing, the bill guts the most fundamental requirements of due process.

Proponents of the House bill say it is necessary to respond to a 2001 U.S. Supreme Court decision in which the majority ruled that if a noncitizen is ordered removed, that person may be held pending his or her actual removal from the country for a period of up to six months. After that period, the government must release the individual, subject to conditions, unless it can establish that removal is likely in the reasonably foreseeable future or that the individual is "specially dangerous." Absent either of these conditions, the court ruled, continued detention would raise serious due process concerns.

Why does it take so long to remove noncitizens? Ninety-eight percent of the time, it doesn't. But in a very small number of cases delays occur when the noncitizen's home country does not have diplomatic relations with the United States or refuses to issue necessary travel papers in a timely manner. Roughly a third of these cases involve Cubans.

Since the high court's decision, U.S. Immigration and Customs Enforcement (ICE) has released more than 12,000 aliens. A small percentage of those released were later detained for criminal violations. A couple of individuals released by ICE were later found guilty of high-profile violent crimes. Even though this very real problem was addressed by ICE internal policy, there should be no objection if the House Judiciary Committee simply put the regulation into law. Unfortunately, the bill approved by the committee casts a dangerously wide net that could result in long detentions even for immigrants who did not commit a crime or who are simply fleeing political persecution at home.

Further, the bill ignores existing due process and community safety protections. CurrentDepartment of Homeland Security (DHS) regulations already permit the continued detention of removable aliens that are determined to be "specially dangerous." This authority to compel prolonged detention is appropriately balanced by the requirement that DHS demonstrate the reasons for its determinations before an immigration judge.

The Judiciary Committee's bill would replace this balanced approach with one that grants the extraordinary power to decide which immigrants should be subject to prolonged detention to low-level, unelected officials within DHS - without any review by an immigration judge or other neutral party. In addition, the bill would severely limit immigrants' ability to challenge the determinations made by DHS in federal court, as they would be required to bring such claims in federal court in Washington, D.C., irrespective of where they are being held. Being from the heartland of America, I do not think one should have to go to Washington to seek justice. Given the generally limited resources of immigrants, including their lack of access to counsel, this provision in particular creates an enormous barrier to ensuring a fair and equitable process. In short, the bill would turn the DHS into both jailer and judge. This result is anathema to a nation born in protest of arbitrary government detention and in pursuit of individual liberty.

While I commend the Judiciary Committee for seeking to clarify how and when dangerous aliens may be detained, I believe there is a better approach. In 2009, I was pleased to join a bipartisan group of experts to study the immigration detention system under the auspices of The Constitution Project. We ultimately released a series of recommendations that addressed concerns about both the increasing reliance on and excessive length of immigration detentions and the safety threat posed by some criminal aliens.

As we approached our work, my colleagues and I looked to the U.S. Constitution for guidance. It states, "No person shall … be deprived of life, liberty, or property without due process of law." No person, no exceptions. If America stands for anything in the world (and it does), it is that our government cannot detain individuals without providing an opportunity for meaningful, independent review. This right, which belongs to the innocent and guilty alike, should also extend to the noncitizen awaiting removal to his home country.

Hutchinson, a former Republican congressman from Arkansas and undersecretary of the Department of Homeland Security, is now serving as a member of The Constitution Project's Liberty & Security Committee.