Mandatory Prolong Immigration Detentions are Punitive in Nature

Source: Fox News
barrio loganSandy Huffaker/Reuters

Part I: Mandatory Prolong Immigration Detentions are Punitive in Nature

U.S Supreme Court held that six months is the presumptively reasonable period during which ICE may detain Respondents to effectuate their removal. The Supreme Court held that its ruling in Zadvydas applies equally to inadmissible aliens. Zadvydas v. Davis, 533 U.S. 678 (2001),
Department of Homeland Security administrative regulations also recognize that the HQPDU has six-month period for determining whether there is a significant likelihood of an alien’s removal in the reasonably foreseeable future. 8 C.F.R. Section 241.13 9 (b) (2) (ii). The Immigration and Nationality Act (INA) provides for a 90-day “removal period” for a deportable and inadmissible alien. 8 U.S.C 1231 (a)(1), INA §241 (a). After the expiration of the “removal period”, if an alien has not been removed, he shall be subject to supervision under regulations prescribed by the Attorney General”, 8 U.S.C. § 1231(a)(3), INA § 241 (a)(3).
However, Respondents who are detained in this private concentration camps spend years after the six-month presumptively removal period ended. The deprivation of Respondents liberty should be narrowly tailored to serve a compelling government interest. While DHS would have an interest in detaining suspects in order to effectuate removal, that interest does not justify the indefinite detention, particularly detainees that are not significantly likely to be removed in the reasonably foreseeable future.
A contested deportation proceeding is in essence a quest for the truth, immigration Court and should not cease to be impartial merely because in its quest for truth it perceives avenues of unexplored inquiry brought forth by Respondents who seeks to clarify record by calling attention of Immigration Court to certain areas of inquiry not yet developed. In deciding to rest on the original record, without seeking further significant likelihood of removal in the reasonably foreseeable future its “leading back to an absurdity.

It is not enough for the government to claim dangerousness on the basis of only past crimes especially one that are remote in time because “presenting danger to the community at one point by committing a crime does not place the petitioner forever beyond redemption. Ngo V. INS 192 F. 3d 390,398 (3rd Cri, 1998). (“Measures must be taken to assess the risk of flight {562 F. Supp. 2d 1124} and danger to the community on a current basis.”) (“The mere conviction of a crime is not adequate basis for finding that an individual is a threat to the community.”) Korkees Vs. Reno, 137 F. Supp. 2d 590, 598 (M.D Pa. 2001)
A right conferring benefits of inestimable value such as due process and equal protection of law, is man’s basic right for it is nothing less than the right to have rights, before sustaining any decision to impose the grave consequences of deportation, the Court to effect such results, it may do only on scrupulously clear justification of proof, and it’s a court duty “to scrutinize the record with the utmost care construing “the facts and the law as far as is reasonably possible in favor of the respondents.

Constitutional Consideration

The ultimate balance involves a determination as to when under our constitutional system do judicial procedure be imposed upon administrative action to answer fairness as deportation is drastic measure. The encroachment on the liberty interest of this Respondents deemed to be subject to mandatory detention raises questions of constitutional magnitude concerning the reach of Section 236 (c) of the Act, and Section 303 (b) (2) IIRIRA, as this statue cast doubts on their constitutionality.
This Statues inflict punishment on the specified individual or group and moreover determinative of their character to punish. Nonetheless, the issue here is not whether congress has Authority to implement the law, but whether the method it has chosen to do so offends constitutional guarantees of Individual Rights. Section 236 (c) any Section 303 (b) (2) IIRIRA, interpreted upon Respondents arrested by Law Enforcement are obliged to provide them place of birth amongst other information solicited for identity. Based on that information along…et (Place of birth and National Origin), ICE issue a detainer ordering the delivery of such person to them upon even before conclusion their legal matters. Sheriff Administrative questioners during intake that demand place of birth or National origin under perjury, compel such an individual to their fifth Amendments Rights ‘and cannot be said such information is obtain legitimately during investigation. Not having sought such conspiracy when asked to state place of birth or National Origin, the Government and Law enforcement Agencies in the ordinary case such individuals are compelled to disclosures instead of claiming the privilege against self-incrimination.
Here Law Enforcement reporting to ICE forms a conspiracy against the individual, when they place an Immigration hold on any person suspected solely on ground that they may be deportable “Aliens” and held under no bond “policy”. One can shout the “Absconders Initiative”, (Dec 2001) as to justify the means in entering names in NCIC, however its purpose was to report those who ignored outstanding deportation orders in violation of the civil provisions of the immigration law. Civic provisions are narrow and limited to individuals listed on the NCIC- which arguably is somewhat within the inherent Authority of States. Even mere existence of a warrant of deportation does not enable all State and local law enforcement to arrest the violator of those civil provisions. (1989 Office of Litigation Council op at 8)
Furthermore, this selective enforcement conspiracy is based on a 1996 opinion by the Department of Justice’s Office of Legal Counsel, which concluded as follows; “Subject to the provisions of State Law, state and local Police may constitutionally detain or arrest for violating the criminal provisions of INA. Conclusion thereto is that this Section 236 (c) and Section 303 (b) (2) IIRIRA,] fails to pass constitutional muster on following grounds;
• these statutes “clearly singles out an ascertained group based on past conduct and legislatively the guilt of such group.
• Compels self-incrimination, in violation of the Fifth Amendment privilege.
• Violates the right of equal protection and Inconsistent with protection of the laws guaranteed under due process clause of the 5TH Amendment.
• Create disparities between similar situated suspend including equal treatment under Bail Reform Act.
Art I Section 9, Cl.3, of the Constitution bar by providing that’ “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial, such statues violate the constitutional guarantees of substantive and procedural due process. Heretofore, the singling out of an individual for legislatively prescribed punishment constitutes attainder, whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons. To emphasize, when past activity such as; Aliens convicted, criminal aliens, aggravated felons, serves as “a point of reference for the ascertainment of persons ineluctably designated by the legislature for punishment, the art may be an attainder. See Cummings v. Missouri, 4 KH Wall, 277, 324 (1867).

The framers vested the Executive, Legislative and Judicial Powers in separate branches, with a concern that a legislative should not be able unilaterally to impose a substantial deprivation on specified group of people. The judicial function or constitutional question is “not to destroy the Act if the Court can, but to construe it if consistent with the will of Congress, so as to comport with constitutional limitations. The government, conversely, legislative intent to encourage compliance with the law does not establish that these statutes are merely the legitimate regulation of conduct and in some abstract sense, such activity of advising INS of such data constitute direct enforcement of the civil provisions of federal immigration law hence civil violations of immigration are not cognizable under any formula relating to arrest powers by California peace officers.
This approach based on selective enforcement, clearly violated equal protection clause of the fourteenth Amendment of the United States Constitution and should be subject to restraint.

With all due respect, in light of Trust Act local enforcement officers in California do not have authority to turn investigation of criminal activity into enforcement activity of the civil provisions of the Immigration and Nationality Act.

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