Eric Holder was at DOJ during its darkest days for immigrants.

Saturday, January 24th, 2009
By: Jonathan MontagJ.D.

Eric Holder was the Deputy Attorney General beginning September 5, 1997, until January 20, 2001. Janet Reno was the Attorney General at the time. Then, Mr. Holder became Acting Attorney General when George W. Bush became president until John Ashcroft became Attorney General on February 2, 2001.

Most immigration practitioners who practiced in that period, 1997-2001, recall the period as one of the darkest in immigration law practice. In April 1996, Congress passed and President Bill Clinton signed AEDPA, the Antiterrorism and Effective Death Penalty Act, and in September 2006, Congress passed and President Clinton signed IIRIRA, the Illegal Immigration Reform and Immigrant Responsibility Act. Both laws dramatically changed the playing field in immigration law when it came to deporting non-citizens, facilitating the deportation process, and dramatically expanding the pool of people who became subject to deportation. Ever since, most immigration attorneys and civil rights advocates have decried the changes in the law and the affects on non-citizens and their families.

President Clinton, who has always been held in high regard by liberal Americans, at least until his shenanigans when his wife was running for president, was not a passive observer to these laws, but rather signed them and then, through his Justice Department and Attorney General, zealously enforced them and defended them when challenged. All the while, Eric Holder was the right hand man to the chief enforcer and defender, Janet Reno.

Three areas where the Justice Department enforced the immigrations laws and sought unnecessarily extreme interpretations of their scope come to mind. A major change in immigration law after IIRIRA was the abolition of the standard relief option for permanent residents who committed crimes, 212(c). A major issue was whether the law applied retroactively to people who were convicted of crimes before the change in the law. Many are familiar with the concept of the Constitutional prohibition against ex post facto laws – a person cannot be tried for a crime that was not a crime when the person committed it. While deportation is technically not a criminal punishment, the fact that a non-citizen can be arrested, detained, tried, and then banished from this country forever, separated from his family and sometimes all he has ever known, seems to many like criminal punishment. Further, even in the non-criminal arena, ex post facto laws are disfavored. Think if you spent $20,000 building a swimming pool in your backyard, and the day after your first swim in it, your municipality banned swimming pools.

The Attorney General was strident in her determination that the law should apply retroactively, except when an application was actually made before the change in the law. See, Matter of Soriano, 21 I. & N. Dec. 516 (June 27, 1996).  Of course Mr. Holder was not on board yet. However, non-citizens denied 212(c) challenged the Justice Department’s position and the Justice Department strenuously applied it interpretation of the law and defended the interpretation in the courts during Mr. Holder’s tenure in office. Federal Courts in five judicial circuits agreed with challengers that the ability to seek forgiveness under 212(c) could not be abolished retroactively. In 2001, the Supreme Court rebuked the Attorney General and agreed that the abolition could not apply retroactively. INS v. St. Cyr, 533 U.S. 289 (U.S. June 25, 2001). Of course, by this time Eric Holder had been the Deputy Attorney General for nearly four years.

Another hot issue after IIRIRA was passed was mandatory detention of criminal aliens. Before IIRIRA nearly any permanent resident who committed a crime could remain free while fighting his deportation case. Do not be confused – the person first served his time for his crime, but after his release he did not face detention. Immigration authorities could detain a “criminal alien,” but the alien could take his case to an immigration judge and show that he was not a danger to the community or a flight risk and be released, most often after paying a bond to guarantee his appearance at his later deportation hearing and deportation, if that became necessary. After IIRIRA, many crimes subjected the non-citizen, even a permanent resident, to “mandatory detention,” meaning he had no recourse to an immigration judge to seek release upon the payment of a bond.

Lawyers for permanent resident aliens across the country challenged the mandatory detention laws arguing that because of the rights afforded to permanent residents under generations of court cases and agency practice, a mandatory detention law for permanent residents violated the right to “due process,” which is a Constitutional guarantee that a person cannot be deprived of his life, liberty, or property without a fair hearing, i.e., due process. Lawyers were successful as four circuit court of appeals concluded that detaining permanent residents without the right to a hearing to determine if they were dangerous or likely would flee was unconstitutional. The Clinton/Reno/Holder Justice Department could have abided by these decisions, reasoning that immigration judges, Justice Department employees, could be counted on to make wise determinations regarding danger to the community and flight risk. Instead, the Justice Department brought the case to the Supreme Court and won. Demore v. Hyung Joon Kim, 538 U.S. 510 (U.S. 2003).  The costly requirement of mandatory detention, requiring the detention of long-term permanent residents, even for a minor drug possession conviction, is still a burden on aliens, their families, and taxpayers, who must pay for the building of facilities for all these people while waiting their removal hearings.

The Supreme Court was persuaded in Kim by statistics that the an average time waiting in detention for a removal hearing is 47 days and for an alien appealing an adverse decision, an average of four months. There may be a way to cook the numbers so that it seems that this is all the time a permanent resident must wait is 47 days, but from my own observation, seeing these numbers as accurate would require borrowing someone’s glasses, putting them on crooked, and then squinting in the dark. In reality, at least where I practice, aliens do not have their trials for at least four or five months after they are detained, and if appealing, can expect to sit in detention well over a year. Some can sit in detention for more than seven years. See, Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 944 (9th Cir. Cal. 2008).

Finally, another issue that the Justice Department dealt with when Mr. Holder was there was the issue of indefinite detention. There are foreigners who are ordered deported that no country will accept. Some are stateless people. Others are from countries that do not want their citizens back. Steven Spielberg made a movie, “The Terminal,” that related to this issue. Though, unlike Viktor Navorski in the movie, stuck at an airport food court, real deportees are stuck in prisons and without the company of Catherine Zeta Jones. People facing life sentences in immigration detention facilities sued.

Some of these “lifers” challenged their indefinite detention. Some courts of appeal found that you cannot detain a person indefinitely. It is a violation of the immigration laws and the due process right to liberty to not even be given an opportunity to show you are not a danger to the community.  Others determined that lifetime detention was legal. The Justice Department, which, in control of the then Immigration and Naturalization Service, which detained these aliens indefinitely  in the first place, took the issue to the Supreme Court and lost. Zadvydas v. Davis, 533 U.S. 678 (June 28, 2001). While Eric Holder was not a Justice Department employee when Zadvydas issued, he was the head of the Justice Department when the case was briefed.

In none of these scenarios, has it ever been mentioned anywhere that I can find that Mr. Holder objected to the Department of Justice’s positions that non-citizens could not seek 212(c) relief, or  that non-citizens should endure mandatory detention, or that non-deportable aliens should languish in prison for life.

The Justice Department is a huge operation with myriads of concerns. Immigration law is a small piece of it. I cannot say that Mr. Holder was even aware that this stuff was going on. However, anyone concerned about what kind of progress the United States will make in immigration reform in the next year or two, in this new era of hope and change, should recall who was on the bridge of the ship of state during the dark days of 1997-2001.


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