Nov 11 Apprehension and Detention
INA Section 241(a)(6)
Definition and Applicability: An alien ordered removed under certain provisions may be detained beyond the removal period. This applies if the alien:
Is inadmissible per section 212 [8 U.S.C.A. § 1182].
Is removable under sections 237(a)(1)(C) [8 U.S.C.A. § 1227(a)(1)(C)], 237(a)(2) [8 U.S.C.A. § 1227(a)(2)], or 237(a)(4) [8 U.S.C.A. § 1227(a)(4)].
Has been determined by the Attorney General to be a risk to the community or unlikely to comply with the removal order.
Supervision Post-Release: If released, the alien must comply with supervision terms as specified in paragraph (3).
Clark v. Martinez, Supreme Court, 2005
Key Issue: Whether the holding in Zadvydas applies to inadmissible noncitizens under section 241(a)(6).
Supreme Court Decision: Yes, Zadvydas does extend to inadmissible noncitizens under section 241(a)(6).
Majority Opinion in Clark v. Martinez
Interpreting Statutory Language: The court emphasized that applying different meanings to identical words in section 241(a)(6) for different categories would not be a correct interpretation.
Indefinite Detention vs. Limited Discretion: The statute can allow for indefinite detention or suggest limited discretion, but it cannot support both interpretations simultaneously.
Dissenting Opinions: Dissenting opinions and their arguments were to be noted, specifically contrasting the majority interpretation.
INA Section 236 – Apprehension and Detention of Aliens
INA 236(c) – Detention of Criminal Aliens: The Attorney General must take into custody any alien who:
Is inadmissible due to offenses covered in section 212(a)(2).
Is deportable for offenses listed in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D).
Is deportable under section 237(a)(2)(A)(i) based on certain offenses with a sentence of at least one year.
Is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B) upon their release.
Custody Rules: This applies regardless of the alien's status at the time of release (parole, supervised release, probation, etc.).
Demore v. Kim, Supreme Court, 2003
Case Facts: The case involved a habeas petition that challenged the mandatory detention of a noncitizen without a risk assessment to determine if they posed danger or were a flight risk.
Lower Court Ruling in Demore v. Kim
Substantive Due Process Violation: The lower courts identified a violation impacting Lawful Permanent Residents (LPR).
Rejections of Government's Justifications: The government argued the need to:
Ensure the presence of criminal noncitizens at hearings.
Protect the public concerning potentially dangerous noncitizens.
Basis for Rejection: The lower courts relied on Zadvydas in their reasoning.
Majority Opinion in Demore v. Kim
Context of the Statute: The majority opinion noted the backdrop of the statute and the distinctions with Zadvydas.
Distinction with Zadvydas in Demore v. Kim
Focus of Zadvydas Decision: Zadvydas was concerned with final orders of removal, stating that indefinite detention was improper if actual removal was not feasible.
Purpose of INA 236(c): This section was determined to serve the imperative to prevent noncitizens from fleeing during removal proceedings.
Detention Duration Comparisons: Evidence indicated that most noncitizens were held for less than 90 days prior to final orders.
Issues of Due Process in Demore v. Kim
Question of Due Process Type: The case raised concerns about whether issues were substantive or procedural due process violations and whether it mattered for scrutiny.
Majority's Scrutiny Standard: What procedural scrutiny was applied by the majority was to be noted and analyzed.
Dissenting Opinion in Demore v. Kim
Comparison with Zadvydas: The dissent compared the circumstances of Kim with those in Zadvydas.
Dissent's Scrutiny Standard: The dissent suggested a different standard for scrutiny that might impact justifications for mandatory detention.
Congressional Authority in Immigration Context
Congressional Rules: It was observed that Congress has leeway in creating rules for aliens that would be unacceptable for citizens under typical circumstances.
Post-Demore Interpretations
Lower Courts' Interpretations: Some lower courts interpreted Demore to apply specifically only to brief detention periods, indicating such interpretations for constitutional concerns.
9th Circuit Ruling: E.g., the 9th Circuit required bond hearings at least every six months for certain detained aliens to comply with constitutional requirements.
Jennings v. Rodriguez, Supreme Court, 2018
Court's Disagreement: The Supreme Court stated the text of the statutes clearly authorizes the detention of specific noncitizens during removal proceedings without mandating limits on detention length or periodic bond hearings.
Indefinite Detention Authority: The ruling confirmed that the government has authority for possibly indefinite detention but left open the question of its constitutionality.
DHS v. Thuraissingiam, 2020
Casualty and Jurisdiction Limits: The court noted that a noncitizen detained shortly after entering the U.S. could not challenge a federal statute restricting judicial review in expedited removals.
Due Process Observations: The court observed that only noncitizens with existing connections in the U.S. are entitled to due process protection in removal proceedings.
Wrap-Up on Immigration Detention and the Constitution
General Due Process Protections: Most noncitizens in the U.S. have due process rights, but the extent of these rights can depend on various factors:
Lawful admission statuses.
Established ties to the country.
Engagements in specified criminal activity.
Court's Deference to Congressional Judgment: Courts often accept congressional decisions limiting certain noncitizen rights in detention or removal contexts.
Current Understanding of Plenary Power and Immigration Law
Interpretation of Plenary Power: Accepted notions of plenary power have evolved; courts frequently interpret immigration statutes more favorably to noncitizens to avoid constitutional conflicts.
Procedural Due Process Requirements: Courts require procedural due process, particularly concerning expulsion cases, while substantive due process often employs a “rational basis” test.
Zadvydas and Martinez Precedent: These cases demonstrate a willingness to address constitutional limits, especially regarding prolonged detention lengths.
Bond Survey Overview
INA 236(a): This section generally authorizes detention of aliens pending removal yet allows for non-mandatory detention with conditions like bond or recognizance.
INA 235(b): Mandates detention of applicants for admission and certain noncitizens who have not been admitted or paroled.
INA 236(c): Requires detention of noncitizens due to specified criminal activity after release from incarceration.
INA 241(a)(6): Requires a 90-day detention post-removal proceedings, permitting but not necessitating continued detention thereafter.
INA Section 236 (Apprehension, Detention and Release) Overview
General Arrest Authority: An alien can be arrested on an Attorney General's warrant pending a removal decision.
Detention & Release Conditions: The Attorney General may:
Continue to detain the arrested alien.
Release the alien on bond of at least $1,500 with approved conditions, or on conditional parole.
Not provide work authorization unless the individual is lawfully admitted or entitled to such authorization regardless of removal proceedings.
Conclusion & Future Scheduling
Upcoming Class Topics: Areas of focus are on citizenship and loss of citizenship, with assignments provided in modules.
Final Class Preparation: Students are encouraged to submit questions 48 hours before the final review, which will include three separate fact patterns resulting in two essay questions plus a multiple-choice question.