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Proposed immigration detention bill must never become law

July 18, 2011

Written by Laura W. Murphy.  Reposted from The Hill’s Congress Blog.

The Rev. Raymond Soeoth and his wife fled Indonesia in 1999 fearing persecution practicing their Christian faith. They arrived in America seeking asylum and were granted the right to live and work here while their applications were processed. The Department of Homeland Security (DHS) rejected Soeoth’s application in 2004 and insisted on detaining him. Yet, he was not a flight risk and had never been convicted of a crime. After two and a half years in immigration detention, Soeoth was finally granted a hearing in front of an immigration judge who immediately ordered his release. Having returned to his wife, his community and his congregation, Soeoth won the right to reopen his case and will likely now be granted asylum.

Had Soeoth not received this hearing, he likely would still be languishing unjustly in immigration detention at a cost of $45,000 per year to taxpayers. He is one of many immigrants who exemplify why detention must be a last resort, accompanied by robust, individualized due process protections to ensure that such detentions are necessary and justified. However, Soeoth and numerous other immigrant members of our communities would have no right to challenge their prolonged and potentially indefinite detention if H.R.1932, a bill introduced by Rep. Lamar Smith (R-Texas) and passed out of committee, becomes law.

Smith’s bill would dramatically expand DHS’s detention of immigrants in the name of “public safety,” despite the fact that crime rates in the United States are at a 40-year low. Smith asserts that the bill is aimed at protecting people from “dangerous criminal immigrants,” despite the fact that many whom DHS would be required to detain have no criminal history at all. Productive community members would be incarcerated indefinitely by the Smith bill, even when it is clear they will not be deported in the near future or possibly in their lifetimes, despite the high cost and extreme overcrowding that already exist in DHS’s immigration detention system.

The human costs of this bill are untenably high. Some individuals face detention for the rest of their lives who have long ago paid their debt to society for old, very minor crimes, such as passing a bad check, committing petty theft or low-level tax fraud. Their right to liberty would depend entirely on the uneasy diplomatic relations of the U.S. with their home countries. While undoubtedly there are people – a miniscule percentage of those covered by H.R.1932 – who have serious criminal proclivities, there are already mechanisms in place to commit dangerous persons to prolonged civil detention. These state systems include the constitutionally-required individualized protections that ensure only the truly dangerous are confined for prolonged periods of time. H.R.1932 ignores the laws already in place and attempts to manipulate the broken immigration detention system into serving an unconstitutional function.

The Supreme Court in Zadvydas v. Davis (2001), and Clark v. Martinez (2005) ruled that immigration detention cannot be converted into the equivalent of life imprisonment without parole at DHS’s unreviewable whim. The court declared that DHS may not detain immigrants if their removal is not “reasonably foreseeable” in the near future, because prolonged or indefinite detention demands stronger procedural protections than those offered for immigration detainees. These rulings express the bedrock constitutional principle of due process, which protects all “persons,” regardless of immigration status. Smith’s bill flies in the face of this clear and recent line of Supreme Court precedent.H.R.1932 will subject vulnerable immigrant members of our society to prolonged imprisonment without allowing them a fair hearing to argue that detention is unnecessary.

The bill substitutes Smith’s flawed categorical judgments about immigrants for the individualized determinations required by due process, and forces American taxpayers to pay for a vastly expanded immigration detention system that is already overcrowded, inhumane and extremely costly ($1.9 billion per year). In a time of improved public safety and decreased financial resources, this bill makes no sense. In America, where the Supreme Court has consistently stressed that “liberty is the norm,” locking up immigrants indiscriminately without bond hearings is the type of “throw away the key” incarceration that we, as a people, abhor because it is offensive to our Constitution and values.

H.R.1932 must never become law.

Laura Murphy is director of the American Civil Liberties Union Washington Legislative Office.

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