Comment by Clay McCaslin
In 1948, Kestutis Zadvydas was born in a displaced persons camp in a region of Germany governed by the United States. The child of two Lithuanian refugees who had fled from Lithuania in 1939, Zadvydas was one of the many Eastern European people who sought the shelter of these camps during the chaos of World War II. At the age of eight, Zadvydas came to the United States with his family in the wake of specially enacted congressional legislation that provided for the relocation of refugees from war-torn Europe. Zadvydas remained here and eventually obtained a green card, thereby becoming a lawful permanent resident of the United States. Unfortunately for Zadvydas, the transition to life in America did not prove to be an easy one, and the young immigrant made a number of bad decisions that would haunt him for the rest of his life. In 1966, at the age of eighteen, Zadvydas was convicted in a New York state court of attempted robbery, third degree. He was convicted again in 1974 for attempted burglary, third degree. The Immigration and Naturalization Service (INS) began deportation proceedings against Zadvydas in 1977 and subsequently released him on his own recognizance. For the next ten years, the INS was unable to locate Zadvydas, and he remained at large. During this time, he married, fathered a child, worked at gainful employment, filed income tax returns, and obtained a reissuance of his green card. In 1987, Zadvydas was arrested in Fairfax, Virginia, for possession of cocaine with intent to distribute; five years later, in 1992, he was convicted in a Virginia state court and sentenced to sixteen years in prison with six years suspended. After completing two years in prison, he was released on parole. Upon his release, Zadvydas was immediately taken into custody by the INS and deportation proceedings were begun anew.
Because Zadvydas is a “stateless” person, and does not qualify for citizenship in any other country, it has proven impossible to execute his order of removal. Nevertheless, the INS argues that it may detain people like Zadvydas indefinitely, even where it is clear that their deportation will never occur, either because they are stateless persons, like Zadvydas, or more commonly, because their countries of origin will not accept them or issue them a travel document. These individuals have served their criminal sentences and do not contest their orders of removal; rather, their only claim is that their continued indefinite detention by the INS is unconstitutional in light of the fact that their deportation can never be effected. Although a person like Zadvydas may not be a model of civic virtue, his crimes hardly warrant the imposition of a life sentence. Yet that is precisely the result that the Fifth Circuit, the Tenth Circuit, and a number of district courts have tacitly approved in a line of cases since 1996.
The constitutional problem presented by the Zadvydas case arose out of Congress's enactment of the Illegal Immigration and Reform and Immigrant Responsibility Act (IIRIRA) in 1996, which substantially altered many provisions of the Immigration and Nationality Act (INA). Specifically, the amended provisions mandate that the Attorney General take into custody any alien convicted of an “aggravated felony” (as defined in the provisions of the Act itself) upon his or her release from incarceration. Although the alien's removal should ideally occur within ninety days (the removal period), the amended provisions give the Attorney General the discretion to detain the alien past the removal period subject to certain procedural requirements. These amended provisions mark a substantial change in U.S. immigration-related detention policies in several key respects. Under the older framework, the Attorney General was required to release the alien if the deportation had not been effected within six months. The new provisions, in contrast, contain no such express time limit. Most significantly, these new provisions place the burden of proof upon the alien to demonstrate by clear and convincing evidence that he does not pose a flight risk or a danger to the community. If the alien succeeds in making that showing, then the decision as to whether to release the alien rests firmly in the hands of the INS district director following the expiration of the ninety-day removal period. But the statute is silent, perhaps intentionally, with regard to exactly how long the detention may continue after the removal period has expired, and whether indefinite detention is authorized in the case of an alien who, for various reasons, simply cannot be removed to any other country. Because the amended immigration laws give the INS seemingly unfettered discretion, the lower federal courts have been wrestling with the question of whether the indefinite detention of a lawful permanent resident alien is constitutional when that person is legally removable but literally has nowhere to go.
From the outset, it is important to grasp the critical distinction between the legal rights of a permanent resident alien (with which this Comment is concerned) and those of an “excludable” alien, who stands on far different footing from a constitutional perspective. An “excludable alien” is an individual who, though physically present in the United States, has never been legally admitted and is therefore considered to be standing at the border, never having made a legitimate entry. Both the Fifth and Ninth Circuits have held that excludable aliens possess few or no substantive or procedural due process rights to be free from indefinite detention. By contrast, a “resident alien” is an individual who has entered the United States in compliance with all of the immigration laws and regulations and has been granted the right to remain here indefinitely. Although a resident alien does not enjoy all of the benefits of U.S. citizenship, the Supreme Court has recognized that such a person is, at the very least, entitled to the protection of fundamental rights and due process under the United States Constitution.
The Zadvydas court based its holding on the premise that lawful resident aliens enjoy no greater due process rights under the Constitution than “excludable” aliens do. The court tried to support this flawed premise by asserting that the detention of people like Zadvydas falls within the ambit of the government's plenary immigration power and is therefore not subject to judicial review to the same extent as analogous constitutional claims brought by U.S. citizens. In holding that permanent resident aliens enjoy no greater due process protection than aliens who have never been admitted, the Fifth Circuit ignored a fundamental constitutional distinction that the Supreme Court has recognized for over a century. This Comment will address the controversial issue presented in the Zadvydas case by examining the Fifth Amendment's due process clause and the Court's accompanying jurisprudence defining who constitutes a “person” for purposes of the Fifth Amendment. Part II will demonstrate that, contrary to the government's assertions, detention is actually indefinite, permanent, and punitive. Part III will explore the contours of the Due Process Clause and will demonstrate that lawful permanent resident aliens are indeed entitled to substantive due process rights under the Fifth Amendment. Part IV will show specifically how and why the indefinite detention of these individuals by the INS after it has become clear that they cannot be removed violates substantive due process. This Part will place considerable emphasis on the constitutional limits of the government's plenary immigration power and will deflate the grave misconception that courts should categorically exercise judicial deference in all immigration cases, even when fundamental rights are implicated. Finally, Part V will show that the current procedures employed by the INS in making these determinations are constitutionally inadequate and therefore violate the lawful permanent resident alien's rights to procedural due process under the Fifth Amendment.
About the Author
Clay McCaslin. J.D. candidate 2000, Tulane University School of Law.
Citation
75 Tul. L. Rev. 193 (2000)