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Once a criminal, always a criminal? Unconstitutional presumptions for mandatory detention of criminal aliens


Once a criminal, always a criminal? Unconstitutional presumptions for mandatory detention of criminal aliens

Johnston, Ellis M


On November 16, 2000, Joao Herbert was deported to Brazil by the U.S. Immigration and Naturalization Service (INS, or the "Service"). The twentytwo year-old Herbert had not been to his country of origin for fourteen yearsthat is, not since he was adopted by an Ohio couple at the age of eight from a Sao Paulo orphanage. Now in exile, Herbert will not be able to return to the familiar surroundings of his home in the United States and see his mother or care for his paraplegic father. His family cannot afford to visit him in Brazil. Herbert speaks no Portuguese, and he knows no friends or family in his native country. At least for now, some English-speaking members of the Brazilian community have temporarily taken him in as something of a cause celebre.'

Herbert's tragedy began in 1997 when he was arrested for selling marijuana to a police informant. A first-time offender, Herbert served no time in jail and was instead sentenced to probation and six months of rehabilitation. In light of this sentence, the state judge must have taken into consideration Herbert's circumstances when meting out his punishment. The federal government, on the other hand, exercised no such discretion in dealing with Herbert's case.2 Herbert's parents had never thought to have him naturalized as a citizen. Because Herbert was technically a resident alien, the INS detained him upon learning of his conviction and subjected him to deportation proceedings under the 1996 amendments to the Immigration and Nationality Act (INA), which require removal of any immigrant alien who has been convicted of certain specified crimes.3 Herbert spent nearly two years in administrative appeals challenging his deportation, but the Ohio governor refused to accept the state parole board's unanimous request for Herbert's clemency. Soon thereafter, Herbert was deported. He was allowed a twenty-minute visit with his parents before deportation.4

Herbert may have found new friends in his Brazilian exile and someday may discover a new familiarity with his native country, but it is certain that he found no such friendship or comfort during his twenty-month mandatory detention in various Ohio jails during his deportation proceedings.5 Under another 1996 amendment to the INA, section 236(c), the INS must detain all criminal aliens during the deportation process regardless of whether or not they pose a flight or safety risk.6 Despite a narrow exception granting discretionary review for the detention of criminal aliens who are in a witness protection program, detention is otherwise mandatory, and there is no possibility for a hearing to determine bail, bond, or other form of conditional release.8

For many, it may be troubling that someone such as Joao Herbert could have his life turned around in such disproportion to the crime he committed. However, a long line of precedent has continuously reaffirmed Congress's plenary authority to determine the criteria by which noncitizens may be deported from the United States.9 But even if Congress can ultimately demand removal of those aliens with whose ideas it disagrees10 or habits it disapproves,11 it is equally well established that resident aliens are constitutionally entitled to due process during deportation proceedings,12 and as a matter of first impression, due process should require at least some review procedures before aliens engaged in deportation proceedings can be detained for their duration. However, the degree to which detained aliens are protected by due process in this area is an ongoing issue in the federal courts that has yielded little clarity.

This Note seeks to clarify the constitutional challenges-namely the Fifth Amendment due process claims-that have been brought to bear against section 236(c)'s application.13Specifically, courts upholding the constitutionality of this detention provision have mischaracterized-to fatal effect-the actual liberty interest at stake by ignoring the distinction between the liberty interest implicated by a detention determination and that implicated by an ultimate finding of deportability. Some of these courts have also erred in conflating the substantive due process and procedural due process analyses, improperly concluding that failure to survive one precludes analysis under the other. Finally, even some of those courts finding section 236(c) unconstitutional have erred in analyzing this provision under the applicable due process precedent. This Note argues that, properly understood, the applicable principle under either substantive or procedural due process is that criminal aliens have a right to be free pending determination of deportability unless the government shows that they are a flight risk or danger to the community. Therefore, any categorical presumption that these aliens do pose such risks is arbitrary and violates substantive due process as not being narrowly tailored, and violates procedural due process by failing to provide for any sort of individualized determination of detainability.

Part I of this Note presents the problem raised by section 236(c) and discusses the statutory framework, recent history of its implementation, and its current status in the lower federal courts. Part II analyzes the substantive and procedural due process claims that have been brought against section 236(c) and characterizes the right at issue, the proper standard of review, and the correct tests to be applied. Finally, this Note concludes that section 236(c)'s mandatory detention provisions suffer from both substantive and procedural due process infirmities.


This Note focuses on the constitutional infirmities of INA section 236(c), which mandates detention of criminal aliens pending deportation proceedings.14

The tragic circumstances of Joao Herbert's removal to a country he does not know may be unusual as compared to the experiences of most criminal aliens who are ultimately deported. Regardless, section 236(c) has a wide scope. More than 50,000 criminal aliens a year are deported under the 1996 INA amendments, 15 and every one of them is subject to the mandatory detention provisions of section 236(c). As in Herbert's case, most of these aliens are detained for months and, in many cases, years before final removal orders are issued.16 As in Herbert's case, many of these detained aliens are incarcerated in criminal prisons despite their status as "civil detainees."" And even when these aliens are detained in the INS's own civil detention facilities, they are often subjected to conditions " `as severe as we apply to our worst criminals.'"18

Congress has justified its enactment of the mandatory detention provision in section 236(c) on the practical grounds that "[c]onsiderable taxpayer dollars are being spent policing, adjudicating, confining, and deporting criminal aliens" as well as on the normative belief that "[c]riminal aliens are a serious and growing

threat to public safety."19 It has further justified the necessity of mandatory detention on findings that "[o]ver 20 percent of nondetained criminal aliens fail to appear for deportation proceedings."20 Apparently it was of little matter to Congress that some eighty percent of nondetained aliens were not determined to be a flight risk. Nor did Congress appear concerned that mandatory detention of criminal aliens awaiting or challenging final deportation orders exacts its own exorbitant taxpayer costs totaling billions of dollars.21 A. HISTORY AND STATUTORY FRAMEWORK OF MANDATORY DETENTION

Section 236 is not Congress's first attempt to implement mandatory detention for criminal aliens subject to deportation proceedings. In 1988, Congress originally responded to concerns about increased criminal violations by aliens with provisions similar to section 236 in the Anti-Drug Abuse Act of 1988 (ADAA).22 The ADAA provided removal procedures for all aliens who had committed "aggravated felonies"-then-defined as crimes involving murder, drug trafficking, illicit trafficking in firearms or destructive devices, and any attempt or conspiracy to commit such crimes in the United States.23 These provisions further required the Attorney General to detain criminal aliens until removal.24 A majority of courts addressing this mandatory detention provision found it an unconstitutional violation of due process,25 and perhaps in light of these successful challenges, Congress amended the statute in 1990 and 1991 to provide for the release of lawfully admitted aliens who could show that they were likely to appear for hearings and were not a danger to the community.26

Four years later, in 1996, Congress again responded to a number of concerns about immigration and crime by passing the Anti-Terrorism and Effective Death Penalty Act (AEDPA)27 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).28 Among other things, these acts created

the current version of section 236 of the INA. Under section 236(a), any alien "may be arrested and detained pending a decision on whether the alien is to be removed from the United States."29 Thus, the INS has the general permissive authority to detain any alien undergoing deportation proceedings. The force of this detention power is tempered by the availability of bond release hearings, conditional parole, and even work authorization permits for qualified aliens while deportation proceedings are pending.ri However, by the terms of this statute, these alternatives to detention are expressly unavailable to the INS for criminal aliens as defined by section 236(c).31

The INS is required to detain all criminal aliens upon release from their original sentence regardless of whether such release is upon probation or parole.32 Unlike other aliens under the INS's detention authority, criminal aliens have little hope for temporary release. In fact, opportunities for release are limited to cases in which the alien or an immediate family member is in a witness protection program.33 Thus, for all practical purposes, nearly all criminal aliens are subjected to mandatory detention without the possibility of a release hearing for the duration of their proceedings.

Section 236(c) greatly increases the number of crimes that qualify for "criminal alien" status.34 The definition of "aggravated felony" has been enlarged to include not only crimes of violence such as murder and trafficking in firearms or drugs; it now includes, among other offenses, many nonviolent crimes such as perjury, fraud, money laundering, commercial bribery, and the business of prostitution.35 In addition, section 236 provides for the mandatory detention of aliens who have been convicted of several other offenses including crimes of "moral turpitude" (when combined with one other conviction carrying a sentence of one year)36 or possession of any controlled substance (with the

exception of a single offense for possession of marijuana in small amounts).37 Detainable and deportable offenses even include drug addiction.38 In short, detainable offenses include a wide array of violent and nonviolent crimes and even victimless habits.


The intended scope and impact of section 236(c) were large. As noted above,39 this provision requires the INS to detain a wide variety of aliens under its expansive definition of deportable "criminal" activity. In addition to expanding the definition of criminal aliens, Congress has also required the Attorney General to implement a system for the purpose of ensuring that deportable criminal aliens are more efficiently and completely identified for removal.40 When recommending these mandatory detention provisions, Congress "conservatively" estimated that over 450,000 criminal aliens were in federal or local prison systems or under some form of criminal justice supervision.41 Furthermore, as the INS was certainly aware, Congress noted that "[e]ven when a criminal alien is properly identified and the deportation process has begun, the procedures that the INS is required to follow are lengthy and complex. Criminal aliens may remain in the U.S. for years while they appeal their cases."42 Thus, it is little surprise that the INS, faced with the oncoming influx of detention responsibility both in terms of absolute numbers of aliens and extent of detention periods, was ill-prepared to meet its new burden.

Although AEDPA and IIRIRA created the mandatory detention provision that became section 236(c) of the INA, this provision was not immediately implemented upon their passage. Rather, in consideration of the INS's lack of detention capabilities, Congress implemented the Transition Period Custody Rules (TPCR) to allow the INS time to expand available detention space.43 The TPCR suspended section 236(c)'s mandatory detention provision for criminal aliens, and they gave the Attorney General the power to release such aliens upon showings that they were legally admitted, did not pose a danger to the

community, and were likely to appear for future hearings.44 The INS requested an extension of the TPCR upon their expiration in September of 1997 and again in October of 1998.45

Even though Congress refused to extend the TPCR in 1998, the INS felt compelled by its still inadequate number of detention facilities to promulgate its own guidelines for the prioritization of the type of criminal aliens who would be detained as detention space became available.46 In addition, the Service continued to assess the viability of release for detained criminal aliens based on a number of factors including number and type of convictions, history of violence, and evidence of rehabilitation.47 Both of these actions were in contravention of the mandatory language of section 236(c), and in response to congressional pressure, the INS subsequently announced that it would no longer release any criminal aliens.48 C. CONSTIUTIONAL CHALLENGES TO SECTION 236(c)

Almost two dozen federal district court decisions as well as one Seventh Circuit opinion have addressed the constitutionality of section 236(c)'s mandatory detention provision under the Fifth Amendment's Due Process Clause.49 The courts' treatment of section 236 has been anything but uniform. Courts

have found section 236 to be facially constitutional,50 facially unconstitutional,51 unconstitutional as applied,52 as well as constitutional as applied,52 as well as constitutional as applied.53 In addition, these decisions have been based on substantive due process analysis,54 procedural due process analysis,55 or both 56-with some courts making no distinction. Adding further uncertainty and complexity, courts have failed to agree on the correct standard of review, particularly with respect to substantive due process analysis.58 Because this inconsistency and confusion have come largely from an inappropriate characterization of the right at issue, Part II will begin with consideration of this right.

Aside from due process challenges, these mandatory detention provisions have also been challenged, albeit unsuccessfully, on Eighth Amendment and equal protection grounds. The Eighth Amendment claims have been rejected on the ground that detention under section 236 is for legitimate purposes other than punishment, thus making the "cruel and unusual punishment" language of the Eighth Amendment inapplicable,59 as well as on the additional ground that the Eighth Amendment's prohibition against "excessive bail"60 does not pertain to

nonpunitive detention that precludes bail.61

As for equal protection claims, section 236(c) has been challenged for requiring the detention of criminal aliens (as defined by Congress) and not mandating it for other aliens engaged in deportation proceedings.62 These claims have been rejected on the ground that Congress need only provide a rational basis for its classification of deportable aliens by nature of its plenary authority in the area of immigration.63 Because no court addressing these claims

has accepted them, this Note focuses solely on the due process problems presented by section 236, but acknowledges that the Equal Protection Clause leaves open the theoretical possibility of a successful claim by a particular racial or ethnic group that can show sufficient evidence of intentional discrimination.64


Because the courts have frequently mischaracterized the liberty interest that triggers and informs a due process analysis for purposes of section 236(c)'s mandatory detention provision, this Part begins by properly characterizing that interest. Further, this Part argues that both substantive and procedural due process rights are violated when detained aliens are not provided with individualized hearings for release pending deportation proceedings, regardless of the likelihood that they ultimately will be deported.


The Due Process Clause of the Fifth Amendment states, "No person shall ... be deprived of life, liberty, or property without due process of law."65 The Supreme Court has interpreted this clause to provide for two distinct due process analyses:

[T]he Due Process Clause protects individuals against two types of government action. So-called "substantive due process" prevents the government from engaging in conduct that "shocks the conscience" or interferes with rights "implicit in the concept of ordered liberty." When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. This requirement has traditionally been referred to as "procedural" due process.66

Under either substantive or procedural due process analysis, a proper characterization of the right at issue is essential. For substantive due process, the right at stake determines the level of review with which a court scrutinizes the statute and its application. If the liberty interest at stake is fundamental, the government cannot infringe upon such interest "at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest."67 In contrast, when a fundamental liberty interest is not identified, the government's action is judged by the "unexacting `standard of rationally advancing some legitimate government purpose.' "68

Likewise, characterization of the liberty interest will substantially affect any procedural due process claim because the degree of personal interest in liberty is weighed against other factors such as the governmental interest in not having additional procedures.69 Particularly in cases involving section 236(c), character ization of the personal interest at stake has been essential in at least two respects. First, some courts have characterized the proclaimed liberty interest too broadly. For instance, they have characterized this interest as a proclaimed right to unequivocal freedom during deportation proceedings, and in doing so, they have discounted the legitimacy of this interest by presuming that the individual-solely by nature of his previous convictions-would likely pose a threat to the community if released.70 Or these courts have discounted the legitimacy of such an interest as unrealistic in light of the imminence of deportation.71 Second, some courts have erroneously conflated the substantive and procedural due process analyses. Despite the fact that substantive due process involves a separate and independent constitutional calculus,72 these courts have concluded that if an acknowledged liberty interest does not survive substantive due process, then there can be no procedural due process analysis because that right has been extinguished and "there can be no requirement of

procedures for a right ... that does not exist."73

The confusion surrounding the characterization of the rights at issue in mandatory detention cases (and the often drastic results it thereby has created) can be attributed, in part, to the difficulty that the lower courts have had in interpreting the Supreme Court's decision in Reno v. Flores.74 In that case, a class of juvenile aliens who had been detained on suspicion of being deportable challenged the INS's refusal to release them to guardians other than their parents while deportation proceedings were ongoing. The Court ultimately upheld the Service's regulations under a due process analysis that to date is the Court's most extensive pronouncement on due process and the detention of aliens,75 but the lower courts have yet to agree on how Flores affects cases involving mandatory detention of adult aliens. Despite this confusion, all courts addressing mandatory detention have agreed that Flores does stand for one undisputed proposition: "It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings."76 The question that remains is whether this due process right is limited by an alien's status or by the fact that the INS may ultimately find the alien deportable. Flores complicates the answer to this question somewhat because it not only involved the detention of juveniles suspected of being deportable, but also involved constitutional treatment of a right that the Court characterized as the right to be released to individuals who were not these juveniles' parents or legal guardians.

Focusing on the right at issue in Flores, the Court cautioned that "due process analysis must begin with a careful description of the asserted right."77 Although the juvenile detainees argued that the right at issue was the "freedom from physical restraint," the Court rejected this argument, claiming that no such right was involved for two reasons: (1) the required conditions of these juveniles' detention were not penal in nature, and (2) " `juveniles, unlike adults, are always in some form of custody' " so that any expectation of a right to freedom was less than absolute.78 In considering the condition of the juveniles' confinement, the Court characterized it as "legal custody rather than detention" because the INS's Juvenile Care Agreement required that juvenile aliens be kept in facilities that met state licensing requirements for "generally accepted child

welfare standards."79 These requirements provided for "individual and group counseling, education, recreation and leisure-time activities, family reunification services and access to religious services, visitors, and legal assistance."80 Justice Scalia, writing for the Court, characterized the alleged liberty interest as a right "not to be placed in a decent and humane custodial institution if there is available a responsible person unwilling to become the child's legal guardian but willing to undertake temporary legal custody," and claimed that this "mere novelty" of a right could hardly be "ranked as fundamental."81

Whatever one may think of Justice Scalia's treatment of the right at issue in Flores, the less-than-fundamental interests recognized in that case cannot be equated with the interest at stake for adult aliens detained pursuant to section 236(c), and any reliance on Flores for the proposition that detained aliens have a diminished liberty interest in the mandatory detention context is misplaced.82 As Justice O'Connor noted in her Flores concurrence, all aliens have "a constitutionally protected interest in freedom from institutional confinement. That interest lies within the core of the Due Process Clause, and the [Flores majority did] not hold otherwise."83 The form of restraint infringing this "core interest" need not be the "shackles, chains, or barred cells" to which the majority compared the juveniles' less onerous detention conditions,84 although many, if not most, criminal alien detainees are subjected to those exact conditions.85 Rather, as the Court has noted in other contexts, restraint on fundamental liberty interests can occur in a variety of circumstances such as "incarceration, institutionalization, or other similar restraint of personal liberty."86 Thus, even noncriminal detention can constitute an infringement of a fundamental right:

It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. We have always been

careful not to minimize the importance and fundamental nature of the individual's right to liberty.87

Of course, an unqualified liberty interest is not at stake every time an individual is restrained in her freedom, hence the Court's admonition that due process analysis must begin with "a careful description of the asserted right."88 However, many courts have failed to specifically describe the right at issue in mandatory detention cases.

Several courts have erroneously described a criminal alien's liberty interest by adopting the description that the Seventh Circuit gave this interest in Parra v. Perryman.89 In that case, the petitioner had been convicted of aggravated criminal sexual assault, a felony requiring removal under the INA and thus invoking mandatory detention pursuant to section 236(c).90 During his hearings, Parra conceded that he was an alien and had been convicted of a crime requiring deportation.91 Judge Easterbrook, writing for the panel, held that mandatory detention did not infringe on Parra's procedural due process rights.92 In reaching this conclusion, the Parra court characterized the personal interest at stake as "not liberty in the abstract, but liberty in the United States by someone no longer entitled to remain in this country."93 Such an interest may seem to be nearly insignificant for purposes of any due process analysis. However, the court's characterization is incorrect in at least three respects.

First, and most generally, Judge Easterbrook erroneously conflated separate and distinct liberty interests. Even if a detained alien is certain to be deported by virtue of being addicted to cough syrup94 or having been convicted of sexual assault,95 the liberty interest such an individual may (or likely may not) have after issuance of a final deportation order is not the same as the interest that the individual has before a final determination of removability is made. As long as Congress or the INS provide for trial and appeal procedures that must be completed before an alien is finally removable, there is a separate liberty interest at stake. This interest in being free from detention during deportation proceedings "does not involve Congress's decision over who to admit or expel, but rather how its decision to expel someone is implemented, that is, whether Congress can mandate the detention of a legal alien while he litigates whether

he is in fact subject to expulsion."96 Thus, even if Congress has plenary power to make certain aliens deportable by virtue of their long hair or the heinous crimes they may have committed, those aliens' interest in being free before they are finally determined to be deportable should be recognized as a question separate from Congress's removal authority and deserving of its own due process analysis.

In Parra, the court determined that Parra himself admitted he satisfied all the requirements for ultimate removability, thus concluding that "[a] criminal alien who insists on postponing the inevitable has no constitutional right to remain at large during the ensuing delay."97 This conclusion, however, contradicts the logic of existing Supreme Court precedent on aliens' due process rights. In Chew v. Colding,9' the Court held that an alien's liberty interest is significant enough for purposes of due process to require a hearing before he can be removed, no matter how likely removal will be:

[An alien] may not be deprived of his life, liberty or property without due process of law. Although it later may be established... that [an alien] can be expelled and deported, yet before his expulsion, he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal. Although Congress may prescribe conditions for his expulsion and deportation, not even Congress may expel him without allowing him a fair opportunity to be heard.99

It should thus follow that if due process requires a hearing to ensure that an alien is actually removable before removal can occur, then, a fortiori, use of an alien's likelihood of removability-before it has been constitutionally established-to eliminate that alien's separate liberty interest in freedom from arbitrary detention before being found removable itself would be constitutionally infirm. This is particularly true when the avowed purpose of mandatory detention-prevention of flight and protection of the public's safety-is not necessarily coterminous with the reasons Congress may have had for making a particular class of aliens deportable.

Concededly, in Parra it is quite likely that had the petitioner been afforded the opportunity to have a bond determination hearing, his previous conviction of aggravated sexual assault would not only have been sufficient evidence for a finding of ultimate deportability but also strong evidence weighing against potential release on bail.m However, to hold that evidence indicating the

likelihood of removability is sufficient to extinguish an alien's liberty interest for purposes of temporary release when it is not sufficient to establish removal without some form of constitutionally compelled hearing is to put the cart before the horse. Considering section 236(c)'s expansive classification of criminal aliens with the inclusion of many nonviolent crimes and even some noncrimes,' the use of evidence of deportability is particularly misguided when used to eliminate an alien's liberty interest in having an opportunity to show that he is not a flight or safety risk while deportation proceedings are pending.

The second problem with the Parra court's reasoning is that even if Judge Easterbrook were correct that the certainty of deportation before a final determination is made somehow diminishes an alien's liberty interest, the question remains: How certain is deportation in these cases? The Parra court determined that Parra conceded his deportability: "[Parra] concedes that he is an alien and that he has been convicted (on his plea of guilty) of a crime meeting the statutory definition of an aggravated felony."102 Thus, even before a final deportation order was issued, the court concluded that

Parra's legal right to remain in the United States has come to an end. An alien in Parra's position can withdraw his defense of the removal proceeding and return to his native land, thus ending his detention immediately. He has the keys in his pocket. 103

It is probably true that aliens engaged in deportation proceedings can expedite their conclusion (and thus the duration of their detention) by conceding deportability, and perhaps for Parra such concessions in the face of certain deportation may have been appropriate. However, to extend this "keys in his pocket" conclusion of the Parra court to all cases arising under section 236(c) not only misses the importance of temporary freedom to an alien who may wish to spend time with family and friends and arrange his affairs, it also ignores the more significant legal fact that many criminal aliens facing deportation are pursuing valid legal challenges to such a determination. Most likely, Joao Herbert did not think that he had any keys in his pocket to a "native land"-a land whose people and language were unfamiliar to him-when he and his parents were desperately seeking clemency from the Ohio governor for his deportable crime."4 Nor was Ferdinandus Van Eeton, a decorated ex-Marine who claimed to have been naturalized during his honorary discharge ceremonies, conceding deportability when seeking a release hearing despite the fact that his convictions met

section 236(c)'s criteria."5 Consider also the case of Hon Szeto who, in 1985, received a waiver under former section 212(c) of the INA 106 for two convictions under which the INS again sought his removal in 1997.107 Although Szeto was admittedly an alien and had been convicted of deportable crimes, heunlike Parra-was not conceding deportability when he decided to challenge the INS's use of these convictions it had previously waived to now deport him. Another example that illustrates the fallacy of extending Parra's logic would occur when an alien is determined not to be deportable by an immigration judge: If the INS files a notice of appeal, the alien's release is stayed until a final determination is made by the Board of Immigration Appeals.108 Thus, in all of these situations, even if the individuals are ultimately found not deportable, they must remain in detention under the provisions of section 236(c) until a final determination is issued.

The third and final problem with the Parra court's holding is that it fails to recognize the specific nature of the liberty interest at stake for detained criminal aliens. Even if the court correctly concluded that eventual deportation is a foregone conclusion for many aliens detained under section 236(c)-or even if its holding is limited to cases in which aliens present no contest'9-the liberty interest at stake should not be characterized as an absolute right to be free from detention. There are certainly cases in which a criminal alien will pose a sufficient flight or safety risk to warrant detention pending deportation. Thus, the liberty interest at stake for purposes of section 236(c) should properly be construed as a limited right to be free from restraint during deportation proceedings. As one court has characterized it, the actual right at issue is the "modest," yet no less fundamental "right to an individualized bond determination regarding whether release pending deportation is appropriate."llo Perhaps even more specifically, the liberty interest at stake is best characterized as the right not to be detained arbitrarily. Yet even if this liberty interest were one that is conditioned by some individualized showing that one is not a flight or safety risk, detention without an opportunity to be heard must be understood to pose an infringement upon a fundamental liberty interest-however conditional or limited that interest may be. At least three Supreme Court cases addressing detention provisions in other contexts imply that such a fundamental liberty interest is at stake for purposes of mandatory detention under section 236(c) when no opportunity for review is provided.

In United States v. Salerno,"' the Court addressed the constitutionality of pretrial detention for arrestees under the Bail Reform Act of 1984.112 The Act specifically allows a court to detain an arrestee pending trial without bail "if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions `will reasonably assure... the safety of any other person and the community.' ,113 The Court noted that Congress's justification for the Bail Reform Act, not unlike that for section 236(c)'s detention provisions, was the need to respond to "the alarming problem of crimes committed by persons on release."114 Although the Court ultimately upheld the Act with its "full-blown adversary hearing" for determining the danger that an arrestee posed to the community, it did so by balancing the government's interest in detention against "the individual's strong interest in liberty."115 Even when the Bail Reform Act entitles an arrestee to "a prompt detention hearing and the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act,"' 116 the Court was unwilling to use such procedural protections to discount the arrestee's separate and independent fundamental liberty interest. 117 Rather, these protections were merely incident to establishing what the Court held to be a narrowly tailored, compelling governmental interest for purposes of its substantive due process analysis.118 Thus, following the reasoning of Salerno, a criminal alien's liberty interest when faced with a similar situation-pre-deportation detention without bond pursuant to section 236(c)-should be no less fundamental. This is especially true when, unlike confinement under the Bail Reform Act, detention is mandated without any opportunity for a hearing and when there is the probability of being subjected to detention for the duration of proceedings that often take years to complete.

Further support for the proposition that aliens detained pursuant to section 236(c) have a fundamental liberty interest at stake is provided by the Court's decision in Carlson v. Landon."9 In that case, the Court addressed the Attorney General's discretionary authority to detain communist aliens pending deportation pursuant to the Internal Security Act of 1950 (ISA). 120 There, the Court

upheld a facial challenge to the ISA when the Attorney General had made a specific determination that the detained aliens, by nature of their communist activities, posed a threat to national security. 121 However, the Court cautioned that "[o]f course," any "purpose to injure could not be imputed generally to all aliens subject to deportation, so discretion was placed by the [ISA] in the Attorney General to detain aliens without bail."122 Thus, while Carlson might have held that the detainees in that case had no fundamental right to bail after the Attorney General had determined them to be a threat to national security, it expressly implied that the ISA would not have survived review had detention been premised on a presumptive security risk. Section 236(c)'s denial of discretion for purposes of detaining criminal aliens is premised on precisely the sort of categorical imputation of threat to the public that the Supreme Court admonished in Carlson. Therefore, Carlson, like Salerno, should be read as recognizing the existence of a fundamental liberty interest for aliens pending deportation who are presumptively detained without the availability of agency discretion or the opportunity for individualized review.

Perhaps the most promising support for recognizing the fundamental liberty interest at stake for detained aliens comes from a case decided by the Court this past Term, Zadvydas v. Davis. 123 In Zadvydas, the Court addressed detention provisions that apply to aliens who have already been determined to be deportable, but for whatever reason cannot be removed to another country. 124 In at least two respects, these detention provisions are less draconian than those contained in section 236(c). First, the detention provisions addressed in Zadvydas are not mandatory; the INS has discretion to detain these aliens only if they are individually determined "to be a risk to the community or unlikely to comply with the order of removal."125 Second, unlike section 236(c) which denies any sort of detention hearing, the regulations implementing the detention provisions for removable aliens allow for continued, periodic release review by an administrative panel.126 This panel is not only required to look at evidence probative of an alien's flight or safety risk such as prior convictions and history of flight, it must also consider factors favorable to the alien's release such as family ties in the United States. 127

Despite these procedural safeguards, the Court in Zadvydas concluded that the detention provision for deportable aliens raises "serious constitutional con

cerns."128 Using the doctrine of constitutional avoidance, it chose to read the statutory provision providing for indefinite detention of deportable aliens as containing an "implicit" limitation on the duration of these aliens' detention. 129 The Court did not expressly define the scope of these deportable aliens' liberty interest. However, it did consider such an interest "strong enough" to protect against prolonged detention "irrespective of the procedures used."130

The Court's holding in Zadvydas is important in at least two respects concerning the constitutionality of section 236(c)'s detention provisions. First, this holding significantly undermines the rationale underlying the Seventh Circuit's decision in Parra. Whereas the Parra court would severely discount the liberty interest of an alien who has conceded deportability, the majority in Zadvydas, by recognizing the "strong" liberty interest of aliens already determined to be deportable, specifically rejected the government's argument in that case that any such interest should be "greatly diminished by [deportable aliens'] lack of a legal right to liv[e] at large in this country."131 Second, in determining the scope of the liberty interest at stake for detained aliens, at least seven members of the Court, including Justice Kennedy writing in dissent and joined by the Chief Justice, agreed that "both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious."132 Justice Kennedy would have distinguished the detention provisions at issue in Zadvydas as being constitutional where the petitioners were being detained because they "have been found by fair procedures to be flight risks, dangers to the community, or both": 133

Whether a due process right is denied when removable aliens who are flight risks or dangers to the community are detained turns... on whether there are adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special risks or danger if put at large. The procedures [established by the regulations implementing the detention provisions in this case] to determine and to review the status-required detention go far toward this objective.134

The Zadvydas majority certainly went further in defining deportable aliens' "strong" liberty interest "irrespective of the procedures used" to determine

whether they in fact posed a flight of safety risk.135 But no matter how far the Court would go in defining the outer limits of detained aliens' due process rights, the detention mandated by section 236(c) clearly should be within those bounds. Not only have the aliens detained pursuant to section 236(c) not yet been determined to be deportable, they are not allowed any procedures whatsoever for review of their status as flight or safety risks. Such a complete lack of procedural safeguards should be exactly the sort of "arbitrary" detention that seven members of the Zadvydas Court would have found unconstitutional.

Although the Court in Zadvydas said nothing to question the continuing relevance of Flores to the analysis of detained aliens' liberty interests, it is quite possible that the holding in Zadvydas has overshadowed the significance of Flores for the detention of criminal aliens. However, insofar as Flores remains the only Supreme Court case to have directly applied a due process analysis to the detention of aliens, it still must be addressed. In Flores, the Court refused to hold that due process required the opportunity for individualized release hearings, but that case is readily distinguishable from Salerno, Carlson, Zadvydas, as well as the detention mandated under section 236(c).

In Flores, the detainees argued that if the Court would not recognize a blanket right for the juvenile aliens to be taken into the custody of responsible adults, then it should recognize a more limited right to an individualized determination of whether private custody would be in the child's best interest. The Court responded in short that there is "no constitutional need for a hearing to determine whether private placement would be better, so long as institutional custody is (as we readily find it to be . . . ) good enough."136 If the Court's characterization of the juveniles' custody as "good enough" references the conditions mandated by the Juvenile Care Agreement,137 the confinement of adult criminal aliens is clearly distinguishable from the custody of the juvenile aliens in Flores because the regulations at issue in Flores required not only nonjail-like facilities but many services and amenities denied to detained criminal aliens.138 Instead, the detention of criminal aliens pending a final deportation order is much more analogous to the pretrial detention contemplated by the Court in Salerno and Carlson and certainly to the postdetern-tination detention for deportable aliens in Zadvydas.139 Thus, such detention should readily be

distinguished as infringing upon a liberty interest that the "institutional custody" contemplated by the Court in Flores does not.140

As this discussion suggests, criminal aliens have a fundamental liberty interest to be free from physical restraint when there has been no individualized determination that they, if released, would pose a flight or safety risk to the public. The rationale in Parra to the contrary-that the likelihood of deportation somehow diminishes a detainee's liberty interest to be free before a final deportation determination has been made-cannot be squared with the reasoning of the Supreme Court in either Salerno, Carlson, or Zadvydas. In Salerno, the Court expressly held that a detainee has a fundamental liberty interest at stake even when the detainee has been afforded an individualized, adversarial hearing on the detention issue. 141 Likewise, the Seventh Circuit's rationale in Parra does not follow Carlson. Just as the alien in Parra apparently conceded that his conviction satisfied the requirements for deportation, the aliens in Carlson did not deny the allegations of their communist activities, which by the terms of the ISA compelled their deportation. 142 Yet despite these concessions of deportability by the petitioners, the Carlson Court concluded that the ISA would not have survived scrutiny had it required presumptive detentionregardless of how likely deportation was for these aliens. 143 And finally, Parra cannot be squared with the Court's latest holding in Zadvydas in which it determined that the deportable aliens' liberty interest in that case was strong enough to require release regardless of the procedures providing for review of their detention status.144 Thus, considering that section 236(c) provides no procedures for determining whether criminal aliens should remained detained pending a deportation determination, one must conclude that a significant liberty interest is implicated by its mandatory detention provision. As will become clear below, the recognition of this substantial liberty interest is important for both substantive and procedural due process analyses.


The Fifth Amendment's guarantee of due process includes "a substantive component, which forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest."145 Thus if a criminal alien's liberty interest in not being detained pending the outcome of his

removal proceedings rises to the level of a fundamental interest, section 236(c)'s mandatory detention provision would have to survive strict scrutiny. However, if this liberty interest is anything less than fundamental, the contested provision must only "meet the (unexacting) standard of rationally advancing some legitimate governmental purpose." 146 Granted, the majority in Flores chose not to apply strict scrutiny to the regulations precluding the release of juvenile aliens to anyone other than a parent or legal guardian, 147 but the Supreme Court has yet to expressly decide whether a liberty interest similar to that asserted by criminal aliens detained pursuant to section 236(c)-no matter how much more significant it may be than that of the juveniles in Flores 148-rises to the level of a fundamental liberty interest requiring strict scrutiny.

1. The Appropriate Level of Review

A majority of the Supreme Court has never expressly applied strict scrutiny to cases involving detained aliens. In Carlson, the Court reviewed the claims of the detainees-who had already been determined to be a threat to society by the Attorney General-by applying a deferential "clear abuse" standard to the Attorney General's determination. 149 But the Court also stated that dangerousness to the community "could not be imputed generally to all aliens subject to deportation," suggesting that had the ISA not provided discretionary review to the Attorney General that it would not satisfy due process.150 Despite this favorable dicta for alien detainees, the Court did not clarify whether it would have reached this latter conclusion under the clear-abuse standard that it utilized for the Attorney General's discretionary determination (essentially a rational basis review) or whether a heightened level of review would be implicated. Nor is it clear whether the Court would have come to a separate conclusion if it could reasonably be shown, as some courts have claimed in reviewing section 236(c), that ninety percent of alien detainees had historically proven to be a flight risk or threat to society upon release,151or whether a different level of review would be appropriate if, as Congress claimed when enacting section 236(c), only around twenty percent of detainees would be a flight or safety risk.152

The most emphatic statement about an alien's right to heightened scrutiny under substantive due process comes from Justice O'Connor's concurrence in Flores. Justice O'Connor, joined by Justice Souter, would have applied strict

scrutiny in upholding the INS's detention policy for juvenile aliens in Flores.153 As for applying strict scrutiny to detained adult aliens, Justice O'Connor had no doubt: The applicability of this level of review was, in her opinion, "clear beyond cavil, at least where adults are concerned .... The institutionalization of an adult by the government triggers heightened, substantive due process scrutiny." 154 Justice O'Connor's concurrence was not necessary to make a majority in Flores. However, it is more than likely that her vote would make a majority in today's Court for applying strict scrutiny to a statute requiring detention for aliens.155 And because the Court has yet to rule directly on this issue, the holding in Flores has not necessarily precluded a decision requiring heightened scrutiny for detained criminal aliens. This is not to say, however, that Justice Scalia's opinion left this possibility clearly apparent.

In his majority opinion in Flores, Justice Scalia focused the substantive due process discussion on the diminished liberty rights of juveniles in general and, more specifically, on the conditions in which the children were held. 156 However, in the alternative, he considered that these children's alien status would also lead to a more deferential review of the INS's policy: "If we harbored any doubt as to the constitutionality of institutional custody over unaccompanied juveniles, they would surely be eliminated as to those juveniles... who are aliens." 157 Citing a line of Supreme Court precedent that at least one lower court addressing section 236(c) has referred to as a "virtual mantra"'58 for the proposition that Congress has plenary powers in the area of immigration and naturalization, the Flores majority attempted to further rationalize its invocation of rational basis review for the juvenile detention provisions. 159 However, the precedent the Court cites for the breadth of Congress's plenary authority hardly provides any direct support for an invocation of rational basis review in all circumstances concerning the detention of immigrant aliens.

The Court first quotes Mathews v. Diaz'60 for the general proposition that "the responsibility for regulating the relationship between the United States and

our alien visitors has been committed to the political branches of the Federal Government."161 Mathews involved the Social Security Act's conditions regarding an alien's eligibility for participation in a federal medical insurance program. The Court upheld these conditions on welfare benefits because they did not deprive aliens of liberty or property without due process of law.162 Thus, unlike the detention cases which involve actual, physical restraint, 163 Mathews is quite distinguishable insofar as the Court there refused to find a due process interest in entitlement benefits. The Flores Court next cites Fiallo v. Bell's`` for the scope of Congress's power in the area of immigration matters.165 Fiallounlike cases involving challenges to presumptions for detention of aliens already in the United States under section 236(c)-involved a challenge to INS regulations that created preferences for certain classes of aliens seeking admission to the United States.166 But as the Court has consistently noted and most recently reaffirmed in Zadvydas, the distinction between the constitutional protections for an alien already in the country and one seeking entry is significant: "It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders .... [O]nce an alien enters the country, the legal circumstance changes."167 Considering these distinctions, the Flores Court's reliance on these cases for precedential authority regarding the scope of Congress's plenary authority in immigration matters may be misplaced.

Nor does the Flores Court's reliance on Carlson strengthen the case for rational basis review of criminal aliens' detention. In Flores, the Court cites Carlson for two broad propositions: that Congress (1) has the general authority to provide for the detention of aliens pending deportation,168 and (2) has the authority to "eliminate[ ] any presumption of release pending deportation, committing that determination to the discretion of the Attorney General."169 But Carlson, no more than Matthews or Fiallo, does not provide the sort of precedent sought by the Flores majority for its broad interpretation of Congress's plenary powers. Whereas Carlson may stand for the proposition that Congress has the plenary authority (subject to rational basis review) to provide discretionary detention of aliens, Flores held that nondiscretionary custody of juvenile aliens was also subject to lesser scrutiny. If anything, Flores represents an extension of the plenary powers doctrine that it cites, and the scope of any such departure should be limited to circumstances involving the institutionalization of juveniles and distinguished from the sort of nondiscretionary detention at issue for adult aliens pursuant to section 236(c).

More importantly, though, Carlson and its invocation of deferential review should be distinguished from the mandatory detention at issue for criminal aliens pursuant to section 236(c). The Carlson Court might have held that Congress's plenary authority in matters of immigration is broad enough that it can eliminate presumptions of release and give the Attorney General discretion to detain particular individuals, but section 236(c) does something quite opposite: It removes discretion by creating an irrebuttable presumption of detention. Justice Stevens, dissenting in Flores, suggests that the Carlson Court meant to limit the scope of deferential review in immigration matters to those instances involving individual determinations of detainability, for "the Court [in Carlson] was careful to note that the Attorney General had not merely relied on a presumption that alien Communists posed a risk to the United States" in providing for their detention during deportation hearings. 170 Considering that aliens detained pursuant to section 236(c) are held solely on a presumption that they are a flight or safety risk to the community, Carlson provides little support for an invocation of deferential review.

Even if Carlson's holding were not limited to discretionary detention, the Court's most recent pronouncement in Zadvydas may have put any attempt to broaden the unquestioning deference given to Congress's plenary power in immigration matters into question when it iterated that, at least in the context of adult alien detention, Congress's plenary authority is "subject to important constitutional limitations."171 Although the Court did not expressly hold what level of review would be appropriate for the detention of deportable aliens, its willingness to read the detention statute in question so as to free aliens detained longer than six months 172 suggests that something more than rational basis review would be appropriate. Thus, considering the distinction between the juvenile detention at issue in Flores, the discretionary detention at issue in Carlson, and the Court's willingness to read prolonged detention out of a statute for deportable aliens whose detention was subject to the INS's discretion, reliance on Congress's plenary authority to justify a more deferential standard of review for mandatory detention pursuant to section 236(c) is misplaced, and a heightened standard of review for the nondiscretionary detention of these aliens is appropriate.

2. The Salerno Test

Flores and Carlson may have generated a substantial amount of uncertainty as to the appropriate level of review for the detention of aliens. However, nearly every court to have addressed section 236(c) under substantive due process has

agreed that the test set forth in United States v. Salerno 173 for the pretrial detention of criminal defendants controls. Unfortunately, agreement on the correct application of Salerno to criminal aliens has been quite fleeting.

Salerno addressed the Bail Reform Act of 1984 and its application to two criminal defendants, Anthony Salerno, the "boss" of the Genovese Crime family of La Cosa Nostra, and one of his "captains," Vincent Cafaro.174 Each had been indicted on twenty-nine RICO counts including thirty-five alleged violations of fraud, extortion, gambling, and conspiracy to commit murder, and after an adversarial bail hearing, both were found to constitute a threat to society. In assessing the government's interest in providing for pretrial detention of arrestees under the Bail Reform Act, the Court first considered whether the Act was regulatory or punitive in nature.175 Examining the Act's legislative history, the Court concluded that the act was "rationally connected" to a legitimate regulatory and nonpunitive purpose, namely Congress's concern of "preventing danger to the community." 176 The Court next considered whether the incidents of pretrial detention were "excessive" in relation to that purpose.177 Considering that the arrestee is entitled "to a prompt detention hearing and the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act," the Court concluded that there was no "absolute constitutional barrier" to such detention.178 It further held that for these reasons the government's interest "in preventing crime by arrestees is both legitimate and compelling."179

Because the Court recognized the "importance and fundamental nature" of the criminal defendants' "strong interest in liberty," the Salerno Court next considered whether the government's compelling interest in preventing danger to the community was narrowly tailored so as not to infringe unduly on these individuals' fundamental right to be free from detention.180 The Court focused on the fact that the Act was not a "scattershot attempt to incapacitate those who are merely suspected of ... serious crimes," specifically noting that "in a fullblown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person."181 Only then did the Court conclude that such a narrowly tailored compelling interest outweighed the respondents' liberty interest: "When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat

to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat."182 3. Application of Salerno to Section 236(c) Properly understood, Salerno requires courts to perform a two-part test under the traditional strict scrutiny analysis. First, a court must establish whether there is a compelling governmental interest in detention by determining (1) whether the purpose of the detention is regulatory or punitive, and (2) whether the detention provisions are excessive in relation to their purpose.183 If the detention is neither punitive nor excessive, then a compelling governmental interest exists. The court must next determine whether that interest is narrowly tailored so as to outweigh a detainee's "strong interest in liberty."184

Nearly all courts have misapplied Salerno to section 236(c)-whether they have found it to be constitutional or unconstitutional-by collapsing their substantive due process analysis of the statute's detention provisions into only the first part of the Salerno framework and by putting undue focus on the excessiveness and regulatory-punitive prongs of the test. These courts have failed to recognize that this first part of the Salerno test only goes so far as to establish the degree of governmental interest in providing for detention of criminal aliens pending deportation. Thus, they have failed to take the next step of incorporating the governmental interest into the full framework of strict scrutiny review, which requires determining whether the governmental interest (if compelling) is narrowly tailored to overcome the specific detainee's liberty interest.

For example, in Danh v. Demore,185 a case purportedly using the Salerno test to find section 236(c) unconstitutional, the court focused exclusively on Salerno's excessiveness prong to the exclusion of all other elements of the test.186 In determining whether section 236(c)'s detention provisions were "excessive in relation to [the statute's] purpose," the Danh court recognized the government's reasons for mandating detention:

The government has advanced a four-fold purpose to (sec)236(c): (a) to prevent flight; (b) to protect the public from "potentially dangerous" criminal aliens; (c) to correct the failure of prior bond procedures, under which more than twenty percent of criminal aliens absconded before their deportation hearings; and (d) to repair the "serious damage to the American immigration system caused by the Government's inability to detain criminal aliens pending deportation and remove them properly."187

Concluding that the married couple being detained had not committed a violent crime and that they still had seven children in the country for whom they provided care, the Danh court determined that this couple was not a flight or safety risk and that detention pursuant to section 236(c) was "excessive" as applied to this couple in relation to the government's purposes for mandating detention. 188 The court thus found section 236(c) unconstitutional as applied to the petitioners.189

However excessive the petitioners' detention may have seemed under the circumstances in Danh, the court's substantive due process analysis was a severe departure from that espoused in Salerno. In Salerno, the Court recognized similar purposes advanced by the government for providing detention under the Bail Reform Act,190 and in concluding that detention pursuant to the act was not excessive in light of those goals, the Court looked to the structure of the Act itself: its provisions for prompt hearings, the limitation of the detention's duration, as well as the Act's provisions for detention conditions.191 In contrast, the Danh court did not focus on the structure or limitations of section 236(c) in determining that it was "excessive" in comparison to the governmental purposes the court cited; rather, the court looked to the individual circumstances of the aliens' detention in that case.

The Danh court's departure from Salerno is significant insofar as its analysis of the excessiveness prong greatly exceeds the scope contemplated by Salerno, and reliance of the type exercised by the Danh court on this prong of Salerno in finding application of section 236(c) unconstitutional would likely fail under appellate review. In Salerno, the excessiveness analysis was not only limited to a determination of whether a compelling governmental interest existed; more importantly, it was limited to a comparison between the purposes of having detention and the nature of the detention itself. 192 That is, if the purpose of the statute furthers a reasonable regulatory goal,193 then a court should determine whether the form of detention is excessive in light of that purpose. 194 Thus, under the reasoning of Salerno, a detention provision mandating hard labor for pretrial detainees would most likely be found to be excessive if the purpose of detention were merely to prevent flight of the criminal defendant before trial. And even if it were determined that the detention statute did not itself mandate hard labor, the fact that detainees were actually being subjected to such conditions would likely warrant a finding of unconstitutionality under the excessive

ness prong as applied.195 Such reasoning was not a part of the court's excessiveness analysis in Danh. Rather, the court determined that section 236(c)'s mandatory detention was excessive not in relation to the statute's purpose, nor in relation to the petitioners' actual detention conditions, but instead in relation to the petitioners' likelihood of satisfying the purposes of the statute.

In essence, the Danh court was using substantive due process to perform the very sort of individualized determination that section 236(c) does not provide for detained criminal aliens. And while this approach may have satisfied the petitioners in Danh as well as opponents of section 236(c) generally,196 it not only contravenes the test laid out in Salerno, but it also prevents courts from reaching the very issue that makes section 236(c) so constitutionally troubling under a facial substantive due process challenge: whether mandatory detentionwithout the availability of a hearing-could possibly be narrowly tailored to protect a criminal alien's "strong interest in liberty." 197 Instead, if courts were to follow Danh's reasoning, then any possibility of temporary release would depend upon a criminal alien's ability to petition for an Article III court's review of whether detention was "excessive" in light of the individual circumstances. Such an approach is extremely problematic insofar as potential delay, costs, and limited availability of Article III judicial review may hinder an otherwise releasable alien's chances of obtaining release.198

As for those cases upholding section 236(c)'s constitutionality, they too have misapplied Salerno. In Avramenkov v. INS,199 the court cited Salerno for enunciating a "more deferential standard of review."200 However, in limiting its substantive due process analysis to the first two steps of Salernothat is, the regulatory-punitive and excessiveness prongs-the Avramenkov court mistook the rational basis review reserved by Salerno for determining whether a compelling governmental interest existed for the whole test. In doing so, the court concluded that section 236(c) was constitutional because "Congress has made a reasonable finding that aggravated felons, like the Petitioner, are presumptively a threat to the community and a flight risk."201 The court did not determine whether such a reasonable congressional presumption was narrowly tailored to outweigh that particular petitioner's own "strong interest in liberty."202

Several other courts addressing section 236(c) have similarly mistaken Salerno's full analysis.203 For example, in Diaz-Zaldierna v. Fasano,204 the court not only limited its analysis to Salerno's first two prongs, it also applied the excessiveness prong to the petitioner himself in the same misguided vein as Danh.205 In Diaz, the petitioner had been convicted of possession of 0.36 grams of crack cocaine and was being detained during deportation proceedings for that offense. In holding that detention of this petitioner was not excessive in light of his crime, the Diaz court conflated the rationality of Congress's presumptions that certain drug crimes indicate dangerousness to the community with the petitioner's actual conviction: "[T]he issue here is whether Congress violates due process by presuming that petitioner is too dangerous to be released .... [T]he Court holds that this presumption is not an unconstitutional one."206 Whether as a normative matter the presumption that one who has been convicted of drug possession poses a legitimate threat to the public is valid, the court went too far in equating the rationality of Congress's presumption of dangerousness with the actual threat to society posed by the petitioner in this case.

As reasonable as Congress's presumptions are, under Salerno they only go so far as to establish a compelling governmental interest-an interest that must still

be narrowly tailored to protect the individual's liberty interest. And under a proper Salerno analysis, Congress's regulatory purpose for detention pursuant to section 236(c)the prevention of flight risks and dangerousness to the communitymay certainly be compelling interests insofar as they are rational reasons for detention beyond mere punishment.207 And insofar as Congress has considered that detention during deportation proceedings is an effective way of preventing flight and protecting public safety, it is unlikely that there is a less excessive means of dealing with these perceived problems when they actually exist. However, the question that remains under Salerno is whether mandatory detention for all criminal aliens without the possibility of release-even if they actually are not a flight or safety risk-is narrowly tailored to protect these individuals' liberty interest,208 and courts' attempts to collapse this question into the first two steps of Salerno are misplaced.

Mandatory detention in the absence of the possibility for any sort of hearing is not narrowly tailored. If Congress enacted section 236(c) because some "20 percent of nondetained criminal aliens fail to appear for deportation proceedings,"209 then some eighty percent are being detained unjustifiably. And even if the actual number of nondetained aliens that fail to appear for deportation proceedings is closer to ninety percent, as the INS regulations cited by Parra suggest, 210 section 236(c) still does nothing to satisfy the narrow tailoring required by Salerno. Whether eighty percent, ten percent, or some percentage in between of crimianl aliens are not a flight or safety risk, this substantial number of individual's liberty interest are being unconstitutionally infringed by the manadatory detention requirements of section 236(c).211 Futhermore, if the potential safety risk of criminal aliens to the community is Congress's justification for detention, then a blanket presumption that all aliens within section 236(c)'s scope are a threat is considerably overboard and weakened when one considers the numerous nonviolent crimes that Congress has made deportable offenses.212 When an individual can be detained and deported for "crimes: that include misuse of an alien registration card,213 fraudulent obtainment of welfare benefits, 214 and convections that occured over twenty years before detention, 215

then Congress's presumption of dangerousness to the community has gone too far. Thus, as Salerno and Carlson teach, unless some sort of individualized determination is provided to these aliens, the detention provisions of section 236(c) should not survive heightened constitutional scrutiny.

The courts' inability to apply the strict scrutiny standard of Salerno may arise as much from uncertainty about the proper level of review for detained aliens as from confusion about the test actually set forth by the Salerno Court. One thing is clear, though: Salerno acknowledged that a fundamental liberty interest was at stake for pretrial detainees and that interest triggers strict scrutiny.216 However, should rational basis review be the appropriate standard for analyzing section 236(c) under substantive due process, it is likely that congressional or Executive presumptions based on evidence of released aliens' actual flight and safety risks would be upheld.217 Nonetheless, the Court in Carlson did state in rather emphatic dicta that presumptions of detainability "could not be imputed generally to all aliens subject to deportation."218 Thus, considering the fact that the Court in Carlson reviewed the petitioners' detention under a deferential standard of review, it is possible that the absence of any discretion should not even satisfy low-level review. Such irrationality might be even more likely if a petitioner could show that without detention an extremely small percentage of those released actually pose a flight or safety risk. However, even if section 236(c) would survive scrutiny under a more deferential substantive due process analysis, it is still likely to fail under a proper application of procedural due process.


Even when a government action depriving a person of liberty survives substantive due process scrutiny, the government action must still be implemented "in a fair manner," therefore requiring procedural due process analySiS.219 Procedural due process "imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause."220 Thus, whereas "[fln our society liberty is the norm .... detention prior to trial or without trial is the carefully limited exception."221 Because there are no exceptions or limitations for detention pursuant to section 236(c), it should not survive procedural due process analysis.

1. Preliminary Matters

As Justice Frankfurter stated a half century ago, the "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardship of a criminal conviction, is a principle basic to our society."222 Section 236(c) provides no such opportunity. In further articulating what due process is, Justice Frankfurter continued: "The requirement of `due process' is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble; it protects aliens as well as citizens."223 Thus, it may be true that Congress's plenary authority in matters of immigration can justify its classifications that certain aliens-by virtue of being convicted of specified crimes-can be made deportable.TM However, such blunt determinations alone do not satisfy the "delicate process" due an individual being deprived of his liberty before he has been finally determined to be a member of a deportable class; the Court has held that deportable aliens must be afforded the "opportunity, at some time to be heard."225 Likewise, for purposes of detention pending a final deportation decision, Congress may have the plenary authority to mandate detention for those who pose a flight or safety risk, but until these individuals are given the opportunity to challenge whether they are in fact such a risk, due process has not been satisfied.

As recently as Flores, the Court has restated that it is "well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings."226 But the Court has also made clear that entitlement to procedural due process is preceded by a prior inquiry: "The first inquiry in every due process challenge is whether the [petitioner] has been deprived of a protected interest in property or liberty. Only after finding the deprivation of a protected interest do we look to see if the [government's] procedures comport with due process."227 Considering that section 236(c) allows for no procedures in determining whether a criminal alien is detainable, the issue of whether a liberty interest is at stake becomes quite weighty, as a court addressing the constitutionality of section 236(c)'s predecessor28 made clear:

The dispositive issue is whether [the alien] has a constitutionally protected liberty interest in remaining free pending deportation. If such a right exists,

then the statute is a fortiori violative of procedural due process rights because it does not provide any procedures for protecting the liberty interest. Conversely, if there is no right, the absence of any protective procedures is immaterial.229 Perhaps recognizing this all-or-nothing implication of the procedural due process analysis, some courts upholding the constitutionality of section 236(c) under procedural due process have done so by refusing to recognize a criminal alien's liberty interest pending deportation.230 For instance, in Diaz-Zaldeirna, the court rejected a detainee's procedural due process claim on the ground that "there can be no requirement of procedures for a right... that does not exist."231 The court further justified this holding by relying on language from Flores that "[t]his is just the substantive due process argument recast in procedural due process terms."232 Not only did the Diaz court misconstrue Flores's holding, its conclusion that no right exists for purposes of procedural due process is wholly inconsistent with its prior recognition of such a liberty interest for purposes of substantive due process analysis. As the Diaz court itself concluded, "Due process has both substantive and procedural components. As to the former, aliens who have entered this country, even illegally, have a substantive liberty interest that is implicated by arbitrary detention in deportation proceedings."233 Thus, the logic of the Diaz court's reasoning is that even if an individual has a liberty interest sufficient to trigger substantive due process analysis, failure of this interest to survive that scrutiny extinguishes that interest and precludes pursuit of a procedural due process claim. Of course, such a conclusion contravenes the well-established precedent that even if "government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner which requires" procedural due process analysis of that still-existing interest.234

It is likely that the source of the Diaz court's conflation of substantive and procedural due process analysis comes from its confusion of the language it cited above from Flores. Although the Court in Flores could have been clearer in laying out the framework of its procedural due process analysis, it did not reject this claim outright on the ground that the detainees' substantive claim failed. Instead, the Court evidenced its consideration of "whether these alien juveniles have received [procedural due process]" by noting that it "must first

review in some detail the procedures the INS has employed."235 Only after examining the regulations that provided these children with the opportunity to request a redetermination of their custodial status,236 did the Court conclude that "[procedural] due process is satisfied by giving the detained alien juveniles the right to a hearing before an immigration judge."237

As for the language in this analysis cited by the Diaz court for the proposition that no liberty interest exists for alien detainees, it must be noted that the Flores Court was only responding to the detainees' further contention that the availability of a hearing (something not even contemplated by section 236(c)'s mandatory detention provisions) was insufficient for purposes of procedural due process "because it does not require the Service to determine in the case of each individual alien juvenile that detention in INS custody would better serve his interests than release to some other `responsible adult.' "238 In responding to this claim for additional procedures by stating that it failed for the same reasons that the detainees' substantive claim failed, the Court was simply stating that the interest at stake-for all the reasons stated by the Court in its substantive due process analysis, including the fact the aliens were juveniles239 and that the conditions of their custody were protected by the Juvenile Care Agreement240was not substantial enough to warrant further procedures. What the Court did not say-as Justice O'Connor's concurrence makes clear 241-was that detained aliens do not have a liberty interest sufficient to trigger substantive or procedural due process analysis.

2. The Mathews Test

Whether or not recognition of a liberty interest for purposes of procedural due process should conclude the analysis in favor of the detainee when no procedures exist-as is the case with section 236(c)--courts that have recognized such a liberty interest, and thus have considered mandatory detention under procedural due process, agree that the test set forth in Mathews v. Eldridge242 controls.243 To determine whether a statute or governmental conduct satisfies procedural due process under Mathews, courts must balance the

following factors: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of the interest as well as the probable value of additional or substitute procedural safeguards; and (3) the government's interest, including the fiscal and administrative burdens that additional or substitute procedures would entail.244 Interestingly, the Mathews Court developed this test to assess the constitutional adequacy of existing procedures used to determine whether a recipient's disability benefits should be terminated.245 As the Court readily noted, the presumption of its procedural due process analysis was that at least some form of hearing was already available. The Court therefore concluded that the process was adequate if the procedures were tailored "to the `capacities and circumstances of those who are to be heard' to ensure that they are given a meaningful opportunity to present their case."246 Thus, the application of this test to mandatory detention under section 236(c)-which provides no procedures for determining the appropriateness of detention, that is, no opportunity to be heard-may seem curiously inadequate for purposes of procedural due process.247 However, insofar as courts have used the Mathews framework to address the procedural inadequacy of this statute, this Note likewise analyzes section 236(c) under this test.

3. Application of Mathews to Section 236(c)

Due process analysis under Mathews begins by addressing the private interest at stake.248 No less than for substantive due process, proper characterization of this private interest is essential to the procedural due process analysis. And while the Diaz court was certainly wrong to conclude that no personal interest is at stake when an alien is arbitrarily detained,249 one may also want to concede that a criminal alien's "right to freedom pending removal is not absolute"250--at least in the sense that an alien could be found to be a flight or safety risk warranting detention. This, however, would be to misconstrue the interest at stake as well as its absolute nature. The interest is not one of absolute freedom from detention; rather, it is an absolute and weighty interest to not be detained

arbitrarily without any form of individualized determination warranting detention. Despite this simple distinction, several courts have ignored its fundamental importance to a proper due process analysis.

As discussed above,251 the Seventh Circuit's characterization of the personal interest at stake in Parra has created a further inaccuracy by assuming that the weight of this interest rises or falls with the certainty of deportation.252 Despite the problem of confusing these separate liberty interests-the right to be free from deportation and the right to be temporarily released pending a final determination of deportability-many courts finding section 236(c) constitutional under procedural due process analysis have adopted Parra's characterization of the personal interest at stake.253 These courts do not end the analysis, though, with this nonstarter. Beginning with the questionable premise that a criminal alien no longer has a right to remain in the United States by virtue of his criminal convictions (or at least has a severely diminished interest by virtue of the certainty of deportation), these courts go on to address the second Eldridge factor: erroneous deprivation of the interest.254 Because the interest assumed to be at stake is-at best-the potential that ultimate deportation will not be ordered, Parra and the courts following it conclude that "the probability of error is zero when the alien concedes all elements that require removal."255 The procedural due process calculus is then concluded by weighing the concededly heavy governmental interest in limiting flight risk and harm to the public by dangerous bailees.256

If on the other hand, we adopt the characterization of the right offered by courts such as Danh-that is, the personal interest to be free from arbitrary detention pending deportation proceedings-the outcome of the procedural due process analysis is drastically different.257 As the Supreme Court has stated, "[A] fundamental requirement of due process is the opportunity to be heard .... at a meaningful time and in a meaningful manner."258 Section 236(c) provides no such opportunity. Thus, considering the weight of this interest and the absence of any form of individualized determination-much less the opportu

nity to be heard-our procedural due process analysis may, as suggested above,259 end here. However, by proceeding to the second factor-the potential for erroneous deprivation of the interest and the value of additional procedural safeguards-a proper due process analysis under Mathews further elucidates the fatal effect that the lack of individualized determinations creates for section 236(c).

Error is certain for those alien detainees who do not actually pose a flight risk or a threat to public safety. As for the probable value of additional procedural safeguards, any form of hearing would greatly improve (as in, from zero to something of a chance) such an alien's opportunity to be free during the often complex and lengthy deportation proceedings-even if those proceedings ultimately result in deportation. Admittedly, even if some sort of detention determination would increase the likelihood of release for nondangerous, flight-adverse aliens, it might be wholly appropriate to discount the value of any additional procedures if it could be shown that they almost always result in decisions requiring detention. It is unlikely, however, that the value would be so minimal as to completely outweigh a potentially releasable alien's personal interest in obtaining an opportunity to be heard, particularly given that no hearing means that error for such an individual is 100%. And even when considering the entire class of criminal aliens, a substantial enough number are being wrongfully detained to raise serious constitutional concerns. Even if we accept as true (as perhaps we should not, considering the large disparity between conflicting government accounts") that ninety percent of criminal aliens pose a flight risk when released, this still means that several thousand criminal aliens who are not such a risk are wrongfully being detained every year.261

The final Mathews factor is the government's interest. Courts have generally recognized this interest to be Congress's intention "to hold certain criminal aliens in order to ensure public safety and to ensure that deportation would Occur."262 There can be no doubt that the interest in detaining those who pose a significant flight or safety risk is weighty. But this governmental interest, however legitimate, does nothing to counterbalance the detainee's personal interest in not being detained arbitrarily. Presumably a detention provision would not be arbitrary by virtue of having some sort of individualized determination of detainability. And because the point of having individualized hearings is to determine if a detained alien is actually a flight or safety risk, then these additional procedures only go toward furthering the governmental interest. If the criminal alien is determined to be such a risk, he will not be released. Assuming that these procedures work as intended, the risk is slight that dangerous aliens would be released. Therefore, if anything, additional procedures would only serve to further the government's interest by providing a more accurate means of determining which aliens should be detained.

The government's interest in maintaining mandatory detention must be something different than its general interest in making sure that those who pose a flight or safety risk are detained. Two possible governmental concerns present themselves. The first may be the potential for erroneously releasing an alien who poses a flight or safety risk. No court addressing the constitutionality of section 236(c) has suggested that this would be a significant concern. Thus, the second and more likely candidate for a significant governmental interest in not having some sort of individualized detention determination is the cost of imposing these additional procedures.263

Before even beginning to consider the cost of additional procedures, one must recognize that these costs can only be significant if they exceed the costs already imposed upon the government by section 236(c)'s current regime. That is, if section 236(c)'s mandatory detention provisions are currently requiring the detention of individuals who do not pose a flight or safety risk (and who would presumably be released if an individualized hearing were available), then the government is incurring significant and unnecessary costs in detaining such individuals.264 The INS itself has estimated the costs associated with increasing its detention capacity for criminal aliens pursuant to section 236(c) at $750 million.265 And this figure does not even represent the administrative burden and cost of maintaining these facilities which some have estimated to exceed $1 billion annually.266 Thus, the cost of providing for the detention of criminal aliens who may otherwise be released is substantial, particularly considering that detention often lasts months and even years,267 and the potential savings must discount any cost that would be attendant to additional procedures.

Considering these potential savings,268 it is very likely that the cost of providing individualized determinations of detainability would not exceed these savings or-at most-be quite minimal.269

Finally, in considering the additional burden of having some form of individualized determinations of detainability, an estimation of the extent and cost of any additional proceedings must be limited to what would be constitutionally possible. As the Mathews Court reiterated, "All that is necessary is that the procedures be tailored, in light of the decision to be made, to `the capacities and circumstances of those who are to be heard' to insure that they are given a meaningful opportunity to present their case."27 Thus, in Mathews, the existing individualized determination procedures that allowed the plaintiff to submit a written response and present non-oral testimony were held sufficient to satisfy due process for purposes of the termination of the plaintiff's disability benefits, and his claim for a full-blown evidentiary hearing that would include, among other things, the opportunity for oral testimony and cross-examination was rejected.TM With these limitations in mind, it is quite likely that the incorporation of any sort of individualized determination on detainability into the already existing deportation proceedings would not create exorbitant costs to the government. And even if due process did require more significant procedures in the case of section 236(c), it would only be because the liberty interest at stake was significant enough to require such procedures.

On a number of different levels, the government's interest in prolonging section 236(c)'s mandatory detention provisions can hardly be deemed substantial. First, the availability of individualized determinations would not be difficult to incorporate into the existing review process. Second, their costs would potentially be outweighed by the savings attendant to the release of aliens who do not need to be detained, and, finally, the extent of any additional proceedings would likely be limited in nature. Therefore, when this minimal governmental interest is weighed against the competing personal interest to be free from arbitrary detention as well as the certainty of error that arises when aliens are detained who do not present a flight or safety risk, the mandatory detention provisions of section 236(c) must fail any proper procedural due process analysis.


Mandatory detention for criminal aliens pursuant to section 236(c) should be unconstitutional under either substantive or procedural due process, but the current state of the law is anything but certain. Although some two dozen federal courts have addressed this issue, criminal aliens' rights are suspended for now in these courts' inconsistency. Considering the incredible numbers of criminal aliens who are being subjected to this confinement, the dearth of appellate review given to this issue is particularly troubling. Perhaps the lack of review is the result of detainees' claims being mooted (by virtue of removal) before they can be taken up. Or perhaps the lawyers who bring these claims on behalf of rights-based organizations are worried that the review they obtain will create unfavorable binding precedent. In the case of legal victories for detainees, it is quite likely that the government would rather allow release of that individual and maintain its general detention policy rather than suffer damaging precedent of higher courts' determinations.

Regardless of the cause for this unsettled area of the law, the controlling precedent is ultimately favorable for these detainees who have been deprived not only of due process but of any process in regard to their arbitrary detention pending deportation proceedings. By focusing the characterization of the right at issue on the most specific level of generality (as at least one Justice has been fond of saying)-that is, on the interest in being free from arbitrary detention when no individual showing has been made that a criminal alien poses a flight or safety risk-advocates for these dispossessed individuals should be able to focus the courts' attention on the very aspect of these mandatory detention provisions that proves so constitutionally troubling: Congress's overbroad presumptions about "criminality" that mandate the detention of many aliens who are neither a viable threat to the community's safety nor a credible risk of flight.


* B.A., Duke University; M.A., J.D., Georgetown University. I would like to thank David Cole and Peter Rubin for their insightful comments on this Note as well as the members of The Georgetown Law Journal for their sharp editing that guided this piece through to publication.

Copyright Georgetown University Law Center Aug 2001
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2001 Aug