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June 01, 2011

ABA Opposes Extending DHS Civil Detention Authority

The ABA expressed opposition May 31 to a bill to expand Department of Homeland Security (DHS) detention authority, emphasizing that Congress should be taking steps to shorten and provide alternatives to, not prolong, detention.

“The ABA believes that the overuse of immigration detention does irreparable harm to individuals who lack adequate counsel, are separated from their families and may be unjustly deported,” ABA Governmental Affairs Director Thomas M. Susman wrote for the record of a hearing held May 24 by the House Judiciary Subcommittee on Immigration Policy and Enforcement. The panel is considering H.R. 1932, a bill sponsored by House Judiciary Committee Chairman Lamar Smith (D-Texas) that would allow DHS to detain certain immigrants beyond six months if they are under orders of removal but cannot be deported for various reasons. Smith said he introduced the bill to prevent dangerous criminal immigrants from being released from detention.

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 opposes proposals to expand the categories of people who can be detained indefinitely and supports full compliance with the Supreme Court’s decisions,” Susman wrote. He emphasized that, prior to the Supreme Court decisions (and even afterwards, in some cases) too many individuals languished needlessly in immigration detention at taxpayer expense. unable to be rejoined with families, seek medical and other care at their own expenses, or productively contribute to the economy.

“Prolonged detention, including post-final order detention, unnecessarily taxes the American people, creates liability issues for the government, and deprives noncitizens of access to the basics of human existence, including appropriate medical treatment,” he wrote.

Susman pointed out that there are cost-effective alternatives to detention that have proven effective in ensuring that noncitizens appear in court and for removal. Expansion of the Justice Department’s Legal Orientation Program (LOP), which educates detainees on the removal process and whether they qualify for relief, would improve the administration of justice and save the government money by expediting case completions, he said.

During the hearing, Ahilan T. Arulanantham, of the American Civil Liberties Union, testified against the bill, emphasizing that the government already has substantial authority available to deal with cases of truly dangerous aliens who cannot be removed.

Those supporting the legislation were Thomas H. Dupree Jr., former principal deputy attorney general during the Bush administration, and Douglas E. Baker, chief of police in Fort Myers, Florida.

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