The Supreme Court To Decide Whether Illegal Aliens Have A "Due Process" Right To Be Released From Custody While Awaiting Deportation.
The Court stopped short of making such a finding in 2001 in Zadvydas v. Davis but the issue is back with the aggressive enforcement by the Trump Administration of Immigration Laws.
Back on March 30 I published this article calling for the Supreme Court to revisit its ruling 25 years ago in Zadvydas v. Davis in which it held that illegal aliens could not be detained indefinitely while the Government was attempting to arrange for their deportation.
The reason for my focus on this 25 year-old decision is that language in the Majority Opinion written by retired Justice Breyer is the foundation for claims made now that illegal aliens have a right under the Due Process Clause to have a hearing where they might be granted release on bond while their immigration cases remain pending — even AFTER a Final Order of Removal has been entered.
Earlier this week the Supreme Court agreed to hear a case next fall that might call Justice Breyer’s pronouncement into question. It is another immigration case, involving a different detention statute, but the issue of what “due process” rights an illegal alien has to a bond hearing is raised by the case.
But, in my view, the new case that the Court has accepted is really a “stalking horse” for another immigration detention statute that is a point of conflict between the Trump Administration, the Immigration Courts under DOJ, and the District Courts across the country that have been inundated with “habeas petitions” by illegal aliens seeking release after the arrest as part of the Trump Administration’s crackdown on illegal immigration.
Three cases, three different alien detention statutes, but all linked by the common question of how the “Due Process Clause” of the Fifth Amendment intersects with congressional language in the statutes that appears to allow indefinite detention without a hearing.
Zadvydas — an illegal alien with serious criminal convictions in the United States has a Final Order of Deportation. But his home country will not accept him back because of his criminal convictions, and no third country is willing to accept him. Can he be detained in custody by DHS indefinitely while the Government looks for country to take him? The statute does not preclude indefinite detention, but the Supreme Court says a “reasonableness” standard must be applied to prevent statute from being unconstitutional, and then settles on six months being the limit, after which Congress must have “implied” the right to a bond hearing. The Court side-steps entirely the question of whether the “Due Process Clause” includes a “right” to such a hearing.
Genalo v. Black — new case to be decided by Supreme Court in the fall where the question is whether the Due Process Clause requires a bond hearing for aliens with serious criminal histories during the time their immigration case is pending (i.e., before there is a Final Order of Removal entered), or can the narrow classes of aliens specified by Congress be detained throughout the pendency of their case without being given a bond hearing by the immigration court.
Ongoing Habeas Litigation — thousands of cases making their way through Circuit Courts involve illegal aliens with Final Orders of Removal already issued and now having been arrested by the Trump Administration and set for removal. Are they subject to mandatory detention without a hearing under Statute “A,” or are they entitled to a bond hearing under Statute “B.” The vast majority of district judges ruling on habeas petitions have found such illegal aliens entitled to a bond hearing. The Fifth Circuit has ruled Statute “A” applies (no hearing), but the Seventh Circuit has held that Statute “B” applies, and all such illegal aliens must be given a hearing.
