In August 26, 2016, the Justice Department informed the Supreme Court through letters that it provided it with erroneous statistics that formed the basis of the government’s victory in a 2003 case, Demore v. Kim, which upheld the government’s position that the mandatory detention statute at INA § 236(c) required the detention of aliens for an unlimited period, even years, for aliens fighting their cases in immigration court and such prolonged detention was constitutional because it was rare.
The department, in the August 26th letters to the court, said it made “several significant errors” that greatly understated the time certain aliens with criminal records spend detained with no prospect of release. The 2003 opinion, Demore v. Kim, cited government data to hold that “the very limited time of detention” such aliens face while their appeals are pending is too short to be of concern constitutionally (for violating the right to liberty).
The new estimate put the average detention period at more than a year, or more than three times the four-month estimate the Supreme Court relied on with the Demore ruling. It is somewhat comical that the government is coming clean now when it was obvious anecdotally to participants in the system that the statistics were B.S. when the Supreme Court presented them as a basis for its decision in Demore v. Kim.
The significance of the “mistake” and Demore is that it involves the constitutionality of prolonged, civil detention – what immigration detention is – detaining someone, not as punishment after a criminal conviction, but while the civil immigration removal process is underway. With the judicial imagination focused for some reason on six months as constitutionally troubling, the government asserted that removal proceedings conclude in six months, so there is no constitutional problem, which is what the Demore court then held – a much easier solution for the court than tackling the issue of whether prolonged immigration detention was unconstitutional.
In the thirteen years since Demore, it has become clear that aliens are detained for years more than the constitutionally troublesome six months. The Ninth Circuit Court of Appeals decided that the length of detention in the immigration process was indeed unconstitutional and ordered custody hearings for most detainees, and just not criminal detainees, every six months. It is this decision which is now before the Supreme Court. It is for this case that the Justice Department came clean on the false statistics.
So now we all agree that a detained alien’s case will likely take more than six months to conclude. We also know that in the Ninth Circuit, those detainees will get a bond hearing at six months and, because the burden is on the government to show that the alien is a danger or flight risk, most will get bonds and most of those will pay them and get released. (Horribly, there are immigration judges who in practice read in a presumption of flight risk to aliens in each case and deny bonds at the every-six-month hearings.).
Meanwhile, last week the Department of Homeland Security announced that the government would no longer handle Haitian arrivals to the United States with kid gloves. The normal course of action as provided by regulations is that aliens arriving at a U.S. border without permission to enter the United States are subject to expedited removal unless the alien expresses a fear of returning to his or her country, in which case the alien is not removed. Instead the alien is interviewed by an asylum officer to determine if the alien has a “credible fear” of persecution for a reason that qualifies one for asylum or faces a likelihood of being tortured by his government of tortured with the acquiescence of his government. If a credible fear is found, the case is sent to the immigration court. The government then has the authority to release the alien, though, in the San Diego area, way more often than not, Middle Eastern and Muslim types are not being released. If, after six months, the case is still ongoing, which we now all agree it likely will be, then the alien gets a bond hearing and has a good chance of being released on bond.
Haitians have not been subjected to this process, apparently. Instead of being held for credible fear hearings and then sent to immigration court, the aliens were released and their cases filed directly with the immigration court. As Haitians were not being returned to Haiti, until now, which DHS also announced would now resume, it was pointless, until now, to detain them as they would ultimately have to be released as they were, until now, not being removed and the Supreme Court has held that they cannot be held indefinitely if there is no reasonable prospect of removal.
While the new policy is pitched as streamlining the removal process for Haitians – no more disparate treatment from other asylum seekers who must go through the credible fear process and detention – the reality is different. Because of the backlogs that make completing a case in six months unlikely, these Haitians, at least the ones the government opts not to release after the credible fear interview who are detained in the Ninth Circuit, will stay detained for six months and then seek release. So instead of a more expedited process, the Haitians will remain detained and clog the works more for six months and then be released. To imagine that the new policy will speed the removal of aliens is folly. Whether Haitians’ knowledge that they will be held in custody for six months and only then can seek release if they find themselves in the 9th Circuit is enough to deter Haitians from coming to the United States is a separate question entirely.
If the government could lock up arriving aliens for years and years while they fight their cases, like Australia and Israel, in a clogged up system, that would likely deter asylum seekers from coming to the United States. Of course that would mean detaining people fleeing for their lives after, in many cases, undergoing severe persecution in their home countries and grueling, dangerous journeys to the United States. The deterrence would be at the expense of any shreds of humanity in our asylum system, and, if the Supreme Court agrees with the Ninth Circuit, the Constitution.
Strangely, at the same time the government acknowledges the true time it takes to complete an asylum case it makes a policy change ignoring the statistics it just corrected adding to the suffering of a class of people for no apparent reason who previously were exempted from the normal course of suffering. The United States should stop abusing asylum seekers, not abusing more of them. Posted September 25, 2016.