Subject: Re: ICE Shooting in Dallas
So, the current DOJ, along with traditional, legal interpretation provides more rights essentially to criminal than civil detainees?

Yes, that's absolutely correct. Citizens of the U.S. have more rights than non-citizens generally, and certainly have more rights than folks who have entered the country illegally. That doesn't mean that non-citizens have no rights, but they have fewer.

The ACLU lawsuit is going to run squarely into the legal analysis in an Eighth Circuit case called Banyee v. Garland, which upheld the constitutionality of the code section that the ACLU is arguing that DOJ is wrongfully processing these folks under. Basically, the Eighth held - and said the SCOTUS had held - that indefinite mandatory civil detention while deportation processes are ongoing is perfectly constitutional:

The rule has been clear for decades: “[d]etention during deportation proceedings [i]s . . . constitutionally valid.”Demore v. Kim, 538 U.S. 510, 523 (2003).

In Demore, the Supreme Court considered a due-process challenge to the same mandatory-detention provision at issue here. See 538 U.S. at 514; 8 U.S.C. § 1226(c). It reaffirmed its “longstanding view that the [g]overnment may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.” The reason, according to the Court, was that “Congress may make rules as to aliens that would be unacceptable if applied to citizens.” In other words, the government has more flexibility when dealing with immigration. See, e.g., United States v. Quintana, 623 F.3d 1237, 1242 (8th Cir. 2010) (explaining that the “constitutional[] valid[ity]” of detention pending deportation means that the usual limits on Terry stops “do[] not apply to . . . administrative arrest[s] based upon probable cause that an alien is deportable”); see alsoWong Wing v. United States, 163 U.S. 228, 235 (1896) (explaining that the power to deport “would be vain if those accused could not be held in custody pending [an] inquiry into their true character and while arrangements were being made for their deportation”).

It is not as if Demore broke new ground. Half a century earlier, the Supreme Court upheld detention without bond for deportable aliens who were active Communists. See Carlson v. Landon, 342 U.S. 524, 541–42 (1952) (holding that their “support[] [for] . . . the Party’s philosophy concerning violence g[ave] adequate ground for detention”). Just as in Demore, no individualized findings of dangerousness or flight risk were necessary.See id. (refusing to require the government “to show specific acts of sabotage or incitement”); see also Demore, 538 U.S. at 524 (emphasizing that “the aliens in Carlson were not flight risks” and “had not been found individually dangerous”). The government could continue to hold the detainees simply “by reference to the legislative scheme.” Carlson, 342 U.S. at 543.

https://cases.justia.com/feder...

For a 30,000 foot explanation of why this is so, consider what the government is actually doing when it detains a citizen vs. a deportable alien. A citizen already has the lawful right to remain in the country, and go wherever they please. An alien who has entered the country illegally does not. That alien might be eligible under the law for some visa, or asylum request, or parole determination, or some other adjudication. That adjudication might then grant them the lawful right to be present in the country and go about their business. But they don't have it automatically. Congress does not have to give them the right to move about the country while any of those processes are pending.

So when the government detains a citizen under the criminal law while they are awaiting trial, the government is taking away an existing liberty before any adjudication has taken place. But when the government detains an alien pending the outcome of their immigration trial, the government is declining to give a new liberty to that alien until the adjudication has happened. The government doesn't have to let the alien have liberty to move around the country unless and until they've received legal admission, if it doesn't want to. That's different than for a citizen, where the government has to let you have your freedom as a matter of right.

I hadn't read those cases prior to this thread - but it's consistent with what I recall from the dim old days of Con Law back as a 1L. So while I can't speak to whether the ACLU is correct in their statutory arguments, I'm pretty sure they've got tough sledding on the argument that aliens unlawfully present in the country have any right to pre-trial release.