"Keep our communities safe act" takes the wrong approach

Two weeks ago, the House Judiciary Committee approved a bill entitled the “Keep Our Communities Safe Act of 2011” (H.R. 1932). The bill is supposedly aimed at reducing crimes allegedly committed by immigrants who have been ordered removed from the United States but who cannot be deported because no country will accept them. 

While there is little to suggest that the bill would actually accomplish this goal, there is a great deal to suggest that the bill would result in a system of indefinite detention for individuals who pose no danger to society. Moreover, the bill empowers government officials to unilaterally determine who should be subject to this prolonged detention, all the while making it more difficult for persons covered by it to challenge their detention before a neutral decision-maker.

Under current law, if a noncitizen is ordered removed, that person may be held pending his or her actual removal from the country for a period of up to six months. The government must then release the individual, subject to relevant conditions, unless it can establish that removal is likely in the reasonably foreseeable future or that the individual is a threat to national security. However, it is sometimes difficult to actually effectuate removal because immigrants can only be removed if their home country is willing to cooperate with the United States and to accept them. The great majority of the more than 200 countries in the world accept the return of their citizens. There are a small number of countries who do not enjoy diplomatic relations with the United States (e.g. Cuba) or who refuse to issue necessary travel papers in a timely manner (e.g. China).

Proponents of this bill suggest that it will allow for the detention of dangerous criminal immigrants beyond six months — a very admirable goal of protecting American citizens. However, they fail to acknowledge that the Department of Homeland Security already has in place regulations that permit it to continue to detain removable aliens that are determined to be “specially dangerous.” Such individuals should be and already are subject to continued detention pending removal. In this respect, the bill is unwarranted and would only serve to overburden taxpayers and divert time, money, and attention from other resources that serve to actually keep our communities safe.

While I am certainly not advocating that dangerous criminals be allowed on the streets, this country’s fundamental notions of fairness and due process dictate that if someone is to be imprisoned, that should occur only after a full and fair hearing. H.R. 1932 also seeks to limit non-citizen access to the judicial review process by requiring that all habeas corpus challenges be filed in the U.S. District Court in Washington D.C., regardless of where the individual is being held. Likewise, it fully denies non-citizens subject to its provisions of bond hearings to determine whether the individual should continue to be detained or whether more economical alternatives, such as in-home detention, should be used. These unjustified restrictions present additional hurdles for challengers, the majority of whom lack adequate legal counsel.

The United States already detains a growing number of non-citizens for ever-lengthening periods, at a cost of nearly $45,000 per person per year, even though most pose no threat to public safety. That is why a bipartisan Committee of prominent Americans, under the auspices of The Constitution Project, issued a report on how to reform our immigration detention system. The Committee advocates for an immigration detention system that is streamlined, focused, and consistent with constitutional principles. While they are concerned about the increasing reliance on and excessive length of immigration detention, they recognize that immigration detention under certain circumstances serves legitimate public purposes. However, the Committee believes that too many non-citizens are being held unnecessarily in immigration detention. Among the Committee’s recommendations are alternatives to detention for individuals who are alleged to have violated our immigration laws but who pose no threat to the community and are not likely to flee. The legislation approved by the Judiciary Committee is not a step, but a sprint in the wrong direction.

Bruce J. Einhorn, a former federal prosecutor, served as a Federal Immigration Judge for 17 years. He is currently a professor of law at Pepperdine University. 

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