Telltale sign that mandatory detention must go

Sunday, August 30th, 2009
By: Jonathan MontagJ.D.

A few years ago, the method of paying fees for relief in immigration cases changed. By way of background, foreigners sent to immigration court are sent because the government considers them removable from the United States. Sometimes the government is wrong. The foreigner and the government then argue about whether the person is actually deportable in legal briefs followed by a decision by the immigration judge. Sometimes a person is deportable but is eligible for relief. That relief may be to obtain a visa or sometimes, statutory forms of forgiveness. There are fees that must be paid for the visas or the forms of forgiveness. It used to be that these forms could be paid for locally, i.e, with the the Immigration and Naturalization Service in the city where the person lived or the court was. It was not very important exactly where – the important thing is that INS took the fees. Then the Department of Homeland Security came into being and INS was split up into several components. It became unclear which of the new parts should take the money and what procedures would be used.

What the government came up with was that fees had to be sent to the Texas Service Center, part of U.S. Citizenship and Immigration Services, for most fees. An exception existed for cases where the alien was detained. Then, the fees could be paid locally for most forms. The reason was obvious. It could take a month or more to mail a form to Texas and get a receipt back. The immigration courts did not want to act on a request for relief until the judges were sure the fees were paid. Recently, USCIS and the immigration courts announced that nearly all fees now have to be paid for at the Texas Service Center. The government is obviously no longer concerned that cases need to be resolved fast and that fee payment could delay resolution. The reason is that the courts are so backlogged that no one’s case where relief is available is resolved in a month or less. Aliens hardly see a judge in less than two weeks for their initial court dates. Final court dates where relief, like a visa or forgiveness, can be granted are more like six months in the future. At least when forms could be paid locally there was a pretense that cases would be resolved rapidly. Now that pretense is gone.

What is interesting about this is that when the government argued that its mandatory detention authority was constitutional, it argued that most cases got resolved in a month to a month and a half. The Supreme Court reasoned that since mandatory detention of permanent residents only becomes problematic after six months [what hat they pulled six months out of is not very clear], and since cases never last six months, the mandatory detention statutes was constitutional. Now that all pretences are gone and cases drag on for far longer than six months, it is time to re-visit the constitutionality issue. The government’s abandoning local fee paying is a telltale sign that immigration court cases are dragging on beyond the maximum constitutionally permissible six month limit. It is time to declare mandatory detention unconstitutional.

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