Today, Congressman Jerrold Nadler (D-NY), senior Member of the House Judiciary Committee, offered an amendment to strike Section 310 during the committee's markup of H.R. 2431, The Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act.   Section 310 of the legislation is an unconstitutional provision that authorizes—and in some cases mandates—the indefinite, and possibly permanent, detention of certain immigrants, with virtually no procedural protections for those who are detained.

“Indefinite detention is contrary to American principles of due process, and it is repugnant to our values of fairness and individual liberty,” said Congressman Nadler. “The rationale behind this provision, as with most provisions in the underlying bill, appears to be that undocumented immigrants are presumed to be dangerous, and that they are not entitled to the fundamental protections we guarantee to all who are present in this country.”

The full text of Congressman Nadler’s statement is below

“Mr. Chairman, this amendment would strike Section 310, an unconstitutional provision that authorizes—and in some cases mandates—the indefinite, and possibly permanent, detention of certain immigrants, with virtually no procedural protections for those who are detained.

“Section 310 is presumably intended to address the Supreme Court’s decision in Zadvydas v. Davis.  That case concerned instances in which a detained individual is ordered removed from the country, but the government is not able to carry out the removal in a reasonable period of time.  This may occur because a country refuses to accept the return of its own nationals, or no country even recognizes the detainee as a citizen or a national, perhaps after a regime change, or shifting borders in their land of origin.  In such circumstances, the Supreme Court held that after a reasonable period of time, generally thought to be six months, if removal is not reasonably foreseeable, the immigrant must be released from detention, except in exceptional circumstances.

“Importantly, the Court held that indefinite detention of such immigrants would raise serious constitutional concerns.  It found that preventive detention of noncitizens who are unable to be removed is justified only when an individual is found to be especially dangerous, and when there are strong procedural protections accompanying any such determination.  This bill, however, falls dangerously short of the Supreme Court’s stringent requirements.

“Under this bill, where removal is not feasible, the Secretary of Homeland Security may, in the Secretary’s sole discretion, detain certain undocumented immigrants indefinitely, with no hearing and no meaningful due process.  If the person was ordered removed due to criminal convictions, even for non-violent crimes such as theft or drug possession, detention is mandatory until they are successfully removed, with little ability for the detainee to challenge his detention.  The bill provides for no individualized determination that a person is especially dangerous, and it provides hardly any procedural protections whatsoever.  The Supreme Court contemplated indefinite detention in only narrow circumstances, but this bill flatly ignores the strict standards set by the Court governing such rare cases.

“Indefinite detention is contrary to American principles of due process, and it is repugnant to our values of fairness and individual liberty.  The rationale behind this provision, as with most provisions in the underlying bill, appears to be that undocumented immigrants are presumed to be dangerous, and that they are not entitled to the fundamental protections we guarantee to all who are present in this country.

“Under current law, it is already possible for individuals who cannot be removed to be detained for prolonged periods of time, but only if there is a determination, subject to procedural safeguards, that they are especially dangerous or that they pose national security risks.  This bill, however, would subject broad categories of offenders, even those who present no danger to their communities, to indefinite detention, based on the thinnest of procedures.

“This amendment would preserve the status quo, which strikes a better balance between respecting individual liberty and protecting public safety.  I urge my colleagues to support the amendment, and I yield back the balance of my time.”

###