Detained Aliens Claim Right to Release—into America

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November 1, 2021

IRLI shows Supreme Court that aliens who choose their detention have no such right

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief in the Supreme Court urging the Court to grant review of a lower-court ruling giving all aliens in detention the right to bond hearings and probable release even though the immigration laws passed by Congressprovide no such right.

The Ninth Circuit Court of Appeals issued this ruling not based on the statutory law, but on its own expansion of an earlier Supreme Court ruling granting a bond hearing to an alien who would not be accepted by any other country if deported, and therefore faced indefinite detention in the United States.

In its brief, IRLI points out the differences between the situation of the alien the Supreme Court gave relief to and that of the vast majority of the detained aliens subject to the Ninth Circuit’s ruling. First, the aliens given hearings by the Ninth Court do not face either indefinite or punitive detention. Rather, as Congress requires, they are detained as they fight their deportation in the courts. Their detention will have an end-point when their challenges to their deportation are decided, and they are either released into the United States with lawful status or removed to their home countries.

Second, IRLI points out that the aliens the Ninth Circuit gave bond hearings to can leave detention at any time—simply by voluntarily returning to their home countries. Thus, they have chosen their detention—unlike the alien in the earlier Supreme Court case whom no country would accept—and accordingly lack any due process right to liberty that Congress has not provided by statute.

“The detention of removable aliens, whether they are illegal aliens or criminal aliens, is fundamentally different from detention as a sentence for a crime,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The United States is not holding them prisoner against their will. Rather, it is allowing them to remain in the United States while they challenge their deportation in the courts, and setting the conditions for their remaining here. If they don’t like those conditions, they can always leave detention and return to their native land. We hope the Supreme Court sees this, grants review, and reverses the Ninth Circuit’s unprincipled rewrite of the law Congress passed.”

The case is Garland v. Gonzalez, No. 20-322 (Supreme Court).

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