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Is it constitutional to lock up asylum-seekers indefinitely?

FORSYTHJudge Elizabeth A. Wolford, a federal district court judge for our area, has received favorable publicity in the past four months. In two decisions she criticized ICE for the way it treated asylum-seekers detained at the Buffalo Detention Facility in Batavia.

In the first decision, the judge found that ICE had slowed if not stopped processing the parole requests of detainees whom ICE had initially determined had a credible fear of persecution or torture. This slowdown violated the agency’s rules on the subject. Consequently, the judge ordered the agency “to immediately adjudicate or readjudicate the parole applications” of the detainees “in conformance” with its rules.

ICE had detained some of the asylum-seekers at Batavia for six or more months. The judge ordered it to provide them with “individualized bond hearings.” It had to prove by clear and convincing evidence that further detention was justified. Abdi v. Duke, No. 17-cv-0721 (W.D.N.Y. Nov. 17, 2017).

In requiring bond hearings after six months, the judge joined many other courts. They were concerned that the relevant statutes were too open-ended and gave the government the power to detain an alien indefinitely. This might violate the Due Process Clause. To avoid this conflict, they read into the statutes the six month limitation and the burden-of-proof requirement. See, e.g., Lora v. Shanahan, 804 F.3d. 601 (2nd Cir. 2015) and Jennings v. Rodriguez, 804 F.3d 1060 (9th Cir. 2016).

Two weeks ago the Supreme Court reversed the Ninth Circuit, ruling the lower courts could not interpret the statutes as they had. Jennings v. Rodriguez, 583 U.S. ___ (2018).

The canon of constitutional avoidance is predicated on a statute being “susceptible of more than one construction,” with one of the constructions likely violating the constitution. To save the statute, a court will adopt a construction that does not violate the constitution. If the statute is not ambiguous, then the canon “has no application.”

The Supreme Court undertook a lengthy analysis of the relevant statutes. One deals with the detention of aliens who are inadmissable due to fraud or lack of documentation, one deals with aliens who apply for admission to the country for reasons of asylum, and one deals with aliens who have been lawfully admitted but who engage in certain criminal conduct that makes them subject to removal. 8 U.S.C. §§ 1225(b)(1), 1225(b)(2), and 1226(c).

None of the statutes mentions bond hearings after six months or the standard of proof for the hearings. The statutes are very clear that the detention lasts for the duration of the underlying immigration proceeding, be it on asylum or for removal.

The removal statute goes one step further. It authorizes the release of an alien “only if” doing so is necessary to protect a witness. Otherwise, releases are prohibited, so found the Supreme Court.

The Supreme Court did not address the constitutional issue—whether the statutes’ allowance of indefinite detention violates the Due Process Clause. It referred the issue back to the Ninth Circuit for decision, because the appeals court had, improperly, avoided the issue.

At the very end of its decision the Supreme Court did note “due process is flexible” and the guarantee “calls for such procedural protections as the particular situation demands.”  This suggests the Supreme Court may not approve a single remedy.

Ironically, before the Supreme Court rendered its decision, ICE released Mr. Rodriguez and then he won the removal proceeding brought by ICE. He did pay by spending three years in detention.

Back to Judge Wolford. The Supreme Court decision has undercut the logic of the second part of her first decision. On the other hand, the first part stands. ICE must abide by its rules on parole hearings.

In early February the judge had to “clarify” her first decision. The plaintiffs complained in a motion that immigrant judges were granting the parole applications of asylum-seekers but not considering their ability to pay in setting bond, or bail, or considering alternative conditions of release. These failures created a “significant risk that detainees will be deprived of liberty solely based on indigence,” an outcome held to be “fundamentally unfair” by the Supreme Court in Beardon v. Georgia, 461 U.S. 660 (1983). ICE opposed the motion.

The judge agreed with the plaintiffs. While no detainee is “entitled to alternative conditions of release or a reduction in the amount of bond,” an immigration judge must consider these factors. She “had assumed” this obligation “went part and parcel with (her) original order.” Abdi v. Nielson, No. 1:17-cv-0721 (W.D.N.Y. Feb. 9, 2018) (emphasis in original).

The Supreme Court’s decision does not impact Judge Wolford’s second decision relating to the conduct of a parole hearing. Unfortunately, fewer Batavia detainees may get a hearing, or at least a prompt hearing, unless a local court agrees that locking up an immigrant indefinitely is unconstitutional. Maybe Judge Wolford can be that champion.

Scott Forsyth is a partner at Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He can be contacted at (585) 262-3400 or [email protected]