MODERN CHALLENGES TO MANDATORY IMMIGRATION DETENTION: BUILDING CONSTITUTIONAL WALLS AROUND STATUTORY EXPANSIONS
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| Publicat a: | St. John's Law Review vol. 98, no. 7 (2025), p. 1389-1420 |
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St. John's Law Review Association
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| Accés en línia: | Citation/Abstract Full Text Full Text - PDF |
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| Resum: | "12 This provision demands that the government detain certain criminal noncitizens who have committed removable offenses for the duration of their removal proceedings.13 This group is largely ineligible for release on bond and thus their detention often continues for months on end.14 Since codification, the mandatory detention provision has faced many legal challenges, culminating in two landmark decisions by the Supreme Court of the United States that changed the American immigration landscape.15 First, in Jennings v. Rodriguez, the Court held that criminal noncitizens detained under the mandatory detention provision were not statutorily entitled to periodic bond hearings every six months, enabling their indefinite detention without opportunity for release.16 Second, in Nielsen v. Preap, the Court held that the mandatory detention provision did not statutorily require the Department of Homeland Security ("DHS") to detain criminal noncitizens immediately upon completion of their criminal sentences, granting DHS the ability to wait years to detain a reformed noncitizen subject to mandatory detention.17 In sum, these two rulings established firm statutory teeth to a provision that already exercised vast executory power over a large population.18 However, in the past year, the Northern District of California has issued two illustrative decisions pushing back on Jennings and Preap, demonstrating model pathways for these detainees to obtain relief: Part I of this Note will address the history of the mandatory detention provision, examining its legal evolution and establishing background necessary to understand the decisions in Jennings and Preap.20 Part II will examine the decisions and rationale of both Jennings and Preap.21 Part III will discuss Romero-Romero and Perera and explain their rationale, describing their illustrative and innovative roadmaps to obtaining relief for noncitizens covered under the mandatory detention provision post-Jennings and Preap.22 Finally, Part IV will detail the repeatable legal strategies developed by Romero-Romero and Perera and discuss the importance of establishing constitutional limits to § 1226(c) in the face of the Court's flawed rationale in Jennings and Preap.23 I. BACKGROUND AND EVOLUTION OF THE MANDATORY DETENTION PROVISION OF THE INA A. Cracking Down and "The Rule of Law": Passage of the IIRIRA After a landslide congressional victory for Republicans in the 1994 midterm elections, America made clear where its societal and political concerns lay: severe distrust in political leaders to keep Americans physically and economically safe.24 This electoral shiftdemonstrated a belief that America was on a "moral and cultural decline," reflected in successful appeals to public concerns about rises in crime and illegal immigration, along with a failing and bloated welfare state.25 However, while these issues heavily favored Republican candidates26-delivering them full control of Congress for the first time in over forty years27-they had to contend with a Democratic White House desperate to rediscover political inroads with the American populace.28 It was against this political backdrop that the 1996 passage of the IIRIRA occurred.29 Republicans and conservative voters had rallied behind aggressive rhetoric against the "scourge" of illegal immigration, backing policies such as drastic increases to immigration enforcement and denial of public services to undocumented immigrants.30 Although the Clinton administration did not support the more radical, right-wing policies of the new Republican Congress, it was eager to appear tough against issues that concerned this new, angrier American electorate.31 Thus, when the Republican Congress proposed their version of the IIRIRA, Democrats largely accepted it at the behest of the White House.32 The final version of the bipartisan bill included new INA provisions restricting asylum and other pathways to legal status, criminalizing certain immigration offenses, significantly increasing interior border enforcement, and, importantly, providing for harsh enforcement against "criminal aliens. "33 In passing the omnibus bill including the IIRIRA, then-President Clinton took the opportunity to demonstrate his administration's newfound toughness on immigration, hailing it for "strengthen[ing] the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system-without punishing those living in the United States legally. "39 Examined through this generalized lens, the provision met a key goal of the Clinton administration: building a strong record on immigration enforcement.40 The provision's adoption was in response to a perceived failure of the Immigration and Naturalization Service ("INS") to adequately respond to increasing rates of criminal activity by aliens.41 In fact, a 1995 Senate Report from the Committee on Governmental Affairs on the circumstances surrounding the inclusion of the mandatory detention provision in the IIRIRA outlined the most glaring of these perceived issues regarding criminal noncitizens: an inadequate detention scheme and too much opportunity to delay deportation.42 The report stated that the "current U.S. immigration laws . . . permit those who object to delay their deportations for years by taking advantage of an oftentimes irrational, lengthy and complex system of hearings and appeals. |
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| ISSN: | 0036-2905 2168-8796 |
| Font: | ABI/INFORM Global |