The Immigration Mess: The Audacity of Audacity

In 2001, the United States Supreme Court decided the case of Zadvydas v. Davis, 533 U.S. 678 (2001), a seminal ruling on immigrant deportation. A five-justice majority held that those under deportation order could be detained in custody only for a limited time before being either deported or released. The decision applies to “aliens” in the U.S. both legally and illegally and whether criminal offenders or not.

 

The Zadvydas Court applied due process rights to all immigrants inside the U.S., whether here legally or illegally. Due process requires that after deportation orders have issued continued detention must be reasonably necessary to effect deportation. If deportation is not reasonably foreseeable, detention cannot continue. The Court found that six months is a presumptively reasonable “removal” period, which could be extended if justified by the facts of a particular case.

 

An example of an unreasonable detention is the case where there is no repatriation agreement with the country of citizenship. Another example is the case where the country of claimed citizenship denies the fact of citizenship. Finally, the Court ruled that release of an immigrant under deportation order may be conditioned on supervision such as monitoring or other methods.

 

Fast-forward twelve years to 2013. In that year, U.S. Immigration and Customs Enforcement (ICE) released over 36,000 immigrants from detention while waiting for the outcome of deportation hearings. No orders had issued. According to ICE statistics, the 36,000 had amassed almost 88,000 convictions including more than 28,000 from driving under the influence to homicide.

 

ICE is the principal investigative arm of the Department of Homeland Security or, as some call it, the strong arm of DHS. As the strong arm, ICE should be able to respond honestly that the release report was in error. But, apparently, it cannot because it responded, instead, that the releases were mandated by the Zadvydas case.

 

ICE further stated that, in some (unspecified) instances, the releases included supervision such as GPS monitoring, telephone monitoring (the released call in) or bond. The percentage of those supervised was not given.

 

The common sense deconstruction of Zadvydas will have to wait another day because ICE is using it incorrectly. Unlike the facts of that case, the released 36,000 were not under deportation order. They were waiting for the outcome of deportation hearings. Zadvydas does not apply to the pre-deportation order stage. The Court there was interpreting a federal statue dealing with the period after deportation is ordered. The justices in the majority inferred the limited removal period in its reading of the statute.

 

Apparently, ICE prefers to release even violent offenders back into U.S. society rather than deporting them after orders are issued. Instead of being the DHS enforcement arm, it seems more like the helping hand of immigrants who threaten the safety of U.S. citizens.

 

Meanwhile, on March 31 of this year, a former U.S. Marine was incarcerated in a Mexican jail on alleged weapons charges. In San Diego for PTSD treatment, he mistakenly drove into Mexico with three guns in his truck. While Mexican authorities were searching his vehicle, the American called 911 for help. The 911 operator declined as he was already in Mexico under Mexican detention. He is still waiting for his first court appearance.

 

Too bad for him that he isn’t a Mexican caught inside the U.S. with three guns. Under the Interior Repatriation Initiative, the U.S. would put him on a plane bound for Mexico City and pay for his ticket. Mexican authorities would then fly him the rest of the way to his hometown. But, he isn’t that lucky.

 

The Interior Repatriation Initiative was a pilot program begun in 2012. It was created, at least in part, in response to complaints from Mexican border towns about deported criminals being released into their cities. The Program became permanent in 2013, the same year that the 36,000 were released back into U.S. cities and towns.

 

Isn’t that great. Mexican border towns have more pull with DHS than communities in the U.S. By all means, let’s pay to keep them safe while letting our own citizens fend for themselves against known violent offenders.

 

It doesn’t get more audacious than that. We’re all simply dumbstruck.