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September 01, 2011

House Committee Approves Bill to Expand DHS Detention Authority

The House Judiciary Committee approved a bill July 14 that would allow the Department of Homeland Security to detain certain immigrants beyond six months if they are under orders of removal but cannot be deported for various reasons – a step that the ABA maintains would be an overuse of immigration detention causing “irreparable harm” to those individuals and their families.

H.R. 1932, sponsored by committee Chairman Lamar Smith (R-Texas), is intended by supporters to prevent dangerous criminal immigrants from being released from detention. The legislation states that habeas corpus review of such detention and related actions or decisions shall be available only in the U.S. District Court of the District of Columbia after exhaustion of administrative remedies. The bill cleared the panel by a party-line vote of 17-14 after members rejected numerous proposed amendments to scale back the measure’s provisions.

One proposed amendment, rejected by a 13-16 vote, would have authorized review by immigration judges of the detention of arriving asylum-seekers and returning permanent residents. Those who are not flight risks or would not endanger public safety could have been released pending a final disposition of their cases. 

The ABA, expressing opposition to the legislation in late May, said that Congress should be taking steps to shorten and provide alternatives to, not prolong, detention. The association emphasized that two Supreme Court decisions – Zadvydas v. Davis, 533 U.S. 678 (2001) and Clark v. Martinez, 543 U.S. 371 (2005) – have articulated limits on the allowable duration of detention.

Under those decisions, DHS may detain a person for longer than six months after the issuance of a final removal order only if there is a significant likelihood of removal in the reasonably foreseeable future. Regulations currently permit continued detention, however, when the government asserts that a person has a highly contagious disease posing a threat to public safety, a person’s release would have adverse foreign policy consequences, a person is a national security concern, or a person is determined to be “specially dangerous” due to a “mental condition or personality disorder” or prior criminal history.

The ABA also stressed in its correspondence that detention and lack of access to counsel adversely affect the outcomes of immigration cases. Newly released preliminary findings from the New York Immigration Representation Study revealed that only 3 percent of individuals who were unrepresented and detained had successful outcomes, versus 74 percent of individuals who were represented and released or never detained.

“The importance of meaningful access to legal representation for individuals in removal proceedings cannot be overstated,” according to the ABA, yet immigrants have no right to appointed counsel and must either try to find lawyers or represent themselves from inside facilities. The association recommended expansion of pro bono programs, including the Legal Orientation Program, which educates detainees about the law and explains the removal process.

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