Due Process

The U.S. Supreme Court in 2001 and 2005 issued opinions limiting the ability of the federal government to detain people indefinitely because it cannot find other countries to accept them. But House Judiciary Committee Chairman Lamar Smith is preparing to introduce legislation that would circumvent those high court decisions, allowing for prolonged detention. The proposed measure will be the focus of a hearing tomorrow before the House Judiciary’s Subcommittee on Immigration Policy and Enforcement.

Although the hearing will be stacked with witnesses likely favoring Rep. Smith’s proposal, American Civil Liberties Union of Southern California’s Deputy Legal Director Ahilan T. Arulanantham, is scheduled to provide testimony. Arulanantham has successfully litigated cases involving the detention and deportation of non-citizens. The American Immigration Lawyers Association (AILA) honored Arulanantham with its 2010 Arthur C. Helton Human Rights Award for “his body of innovative litigation and its enormous benefits for countless vulnerable non-citizens for their rights and dignity.”

Arulanantham, author of the ACS Issue Brief, “A Hungry Child Knows No Politics: A Proposal to Reform Laws Governing Humanitarian Relief and ‘Material Support’ of Terrorism,” will challenge the calls for new legislation that would greatly expand the federal government’s detention authority.

Arulanantham could note that the Supreme Court in Zadvydas v. Davis and Clark v. Martinez concluded that the federal government does not have the authority to hold someone indefinitely simply because it cannot remove that person to another country. The high court emphasized in its decisions that there is a grave deprivation of liberty involved with potentially permanent detention and that such deprivation of liberty without stringent procedural protections raises “serious constitutional concerns.” 

Arulanantham's written statement submitted to the panel is available here.

In a May 23 letter submitted to Rep. Smith and Ranking Member Rep. John Conyers Jr., nearly 100 legal scholars urge Congress “to craft legislation that will promote, rather than undermine, constitutional guarantees of due process and judicial review in this context.”

Their letter continues:

Rather than exacerbate current problems in the system, to the extent that Congress contemplates reforms, it should enact legislation that would enhance due process and judicial review of civil immigration detention decisions. All noncitizens who are civilly detained should have access to a hearing where the federal government must establish that their continued detention is justified. Decisions to continue noncitizens’ civil immigration detention should be subject to robust judicial review.