Debating Undocumented Immigrants' Rights
Locked Up Tight, Continued
Punishment vs. Detention
At the heart of the dispute about what to do with the 3,000 detainees is whether detention amounts to punishment. If so, due-process considerations apply to their continued incarceration. If not, the federal government says, due process can reasonably take a back seat to national security concerns.
The INS says those being held are not being punished, only detained pending deportation because they are ineligible to immigrate to the United States. Because the detention and deportation proceedings are civil, not criminal, in nature, constitutional protections such as due process don’t apply—or at least have less influence on the process, the INS says. The same logic says detainees are not constitutionally entitled to legal representation.
But lawyers and other advocates for changes to the detention process argue that, to a person being held in jail, whether the charges are civil or criminal is irrelevant. David Cole, a professor at Georgetown University Law Center in Washington, D.C., who runs an immigration law clinic, says, " There are differences between civil and criminal law, but there’s no other proceeding where you’re allowed to lock people up indefinitely."
And the practice is even more troubling when the evidence used to detain the immigrant is kept secret. Equally troubling, says the Arab-American Anti-Defamation League, is the fact that more than 90 percent of all immigrants detained through use of secret evidence have been Muslims of Arabic descent.
"The most basic principle of due process is that you have to have notice and opportunity to defend," says Cole, who has represented thirteen men detained through use of secret evidence. Like indefinite detention itself, using secret evidence in the immigration process flies in the face of constitutional protections, according to advocates of repealing the use of secret evidence. Gregory T. Nojeim, a Washington, D.C.-based legislative counsel for the American Civil Liberties Union notes that, "There has been no coherent explanation for why secret evidence is OK in immigration but not in the criminal context."
Moved by stories of detainees and their families, members of Congress have begun to take notice. In 1999, the Secret Evidence Repeal Act (H.R.2121) was introduced to Congress. It would allow secret evidence only in very limited circumstances, such as in the case of known terrorists, and solely for the purpose of establishing eligibility for deportation. In a series of hearings on Capitol Hill, opponents of secret evidence likened it to tactics of totalitarian regimes, including, ironically, some of the very regimes secret evidence detainees have fled.
(For immigration bills introduced during the current congressional term, see Congressional Bills, Jan.-May 2001: A Selection of Proposals; for immigration bills introduced during any recent term, visit thomas.loc.gov and www.federalcourts.com)
INS Policy Backers
Some defend the INS policy. The Federation for American Immigration Reform (FAIR), a Washington, D.C.-based nonprofit, says disclosure of secret evidence risks endangering antiterrorism efforts at home and abroad. The information should not be disclosed because it could endanger the lives of innocent U.S. and foreign citizens, according to FAIR Associate Director David Ray. And in many cases detainees under secret evidence are free to return to their country of origin if they so choose. They are being held only because they are protesting their deportation.
The INS defended secret evidence in the same hearings before the House Judiciary Committee. INS lawyer Bo Cooper noted that, of the 300,000 deportation cases the INS brings each year, only a handful involve the use of secret evidence. Cooper told the panel that only eleven open cases involved the use of secret evidence.
But advocates of the Secret Evidence Repeal Act say that even one such case is too many, given the potential for abuse. They point to cases such as those of Hani Kaireldeen and Naser Ahmad as examples.
The two men held for nineteen and forty-three months, respectively, were freed last year after federal courts forced the INS to disclose the evidence against them. The judge in Kaireldeen’s case called the evidence against him "pure hearsay." Ahmad similarly was released after successfully refuting the evidence against him.
The biggest question is what the United States should do with people who are ineligible to remain here but cannot be sent back to where they came from. The INS says that indefinite detention, while far from ideal, is the only solution provided by law.
Critics of the practice note, however, that the INS has always had discretion to release "stranded" detainees pending deportation proceedings or execution of a final deportation order, and it often does. In fact, some critics say that there is often no rhyme or reason to why or when the INS decides to release a detainee. Instead, it often appears to be simply a matter of bed space in detention centers.
When detainees are released under those circumstances, they remain under INS jurisdiction and are restricted in travel, work, and other activities. They can also be detained again at any time at INS discretion. Critics believe that this type of "parole" policy should apply almost automatically when there is no reasonable hope of actually deporting someone.
Another 1999 bill proposal, H.R.4966, would have limited detention to a maximum of one year. After that time, if the INS saw no reasonable possibility for deportation anytime soon, the detainee was to be released on this sort of parole. These released detainees would be required to inform the INS of their whereabouts and remain subject to deportation at any time should the opportunity arise, such as if diplomatic relations improved between the United States and their home country.
Parolees would not be eligible for government assistance or work permits; presumably, they would be supported by their families or private assistance organizations. There would be built-in exceptions to the release requirement for those deemed a flight or crime risk, but the bill would require open review of the evidence of such risk, not secret hearsay.
FAIR contends that the Justice Department could do more to encourage other countries to accept the return of their former citizens. Among other things, it could ban legal immigration from countries that refuse to take back aliens found ineligible to stay here. They contend that if enough pressure was exerted, there would be few, if any, indefinite detainees because they would all be repatriated.
Hard Look at the Hard Line
Beyond the immediate issues of immigration reform bills introduced to the Congress, some immigrant advocates question why the INS takes such a hard line in interpreting some of the laws it is charged with enforcing. For example, at least five federal district courts have found that using secret evidence constitutes a violation of due process. Yet the INS continues to use it in other jurisdictions.
Growing pressure from advocacy groups about indefinite detention and the use of secret evidence seems to have sent the anti-immigration pendulum away from the hard line taken in the mid-1990s. Cole sees the shift as inevitable because even Americans who favor less immigration recognize a need for fundamental fairness. Indefinite detention, particularly with the use of secret evidence, flies in the face of due process, he says. It simply has no place in a free society.
Activities related to the rights of detainees in the United States
Student Central | Students in Action | Debating Undocumented Immigrants' Rights
*Locked Up Tight* | Asylum May Be a Matter of Life and Death | The Next Gideon?
Careers in Immigration Law