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The Supreme Court condemns the constitutional right to hear detained immigrants Immigration

US Supreme Court. Recognition: Neil R, Flickr

For many people, the thought of indefinite detention by the government without access to a bond negotiation is the opposite of freedom and other ideals. For some detained immigrants in the United States, a recent Supreme Court decision makes this access difficult – but the media simplifies the decision and implies a sense of finality for the idea that immigrants have no access to bond hearings. The legal reality is more complicated.

Last week, the United States Supreme Court in Jennings v. Rodriguez that the Immigration Law does not give certain detained immigrants the right to regular hearings on debt securities. This overruled a 9th Circuit decision Find that immigration judges “must take into account the length of detention and have hearings on debt securities every six months” for immigrants who have been detained for more than 12 months. The named plaintiff of this class action, Alejandro Rodriguez is a legal permanent residence who has spent three years in immigration detention without appearing before a judge and has brought his case to the federal courts. During the past week Jennings Decision is a disappointing loss for immigrants and lawyers. It is premature to interpret the decision as a Supreme Court seal for the indefinite detention of immigrants.

The media interpretation of this decision implies a feeling of Supreme Court approval for the indefinite detention of immigrants. The New York Times opened her article on the decision with: “People who are sometimes held for years in immigration custody are not entitled to regular hearings to determine whether they can be released on bail.” Heading from NPR read “The Supreme Court ruling means that immigrants can continue to be detained indefinitely,” and many comments on social media skipped the silence could in this heading. Fox NewsThe headline reads: “The Supreme Court decides that detained immigrants do not receive automatic hearings on bonds” and opened with the interpretation that the “Supreme Court has come to the conclusion that certain immigrants or asylum seekers do not have an automatic right to regular custody – or have bail hearings. ”This framework in the media is technically correct, but is deceptive and formulates both better Times and Fox News coverage would contain the words according to the law.

Although the Supreme Court was well informed about constitutional issues, it did not make constitutional decisions. In the shared opinion, Justice Alito, who wrote for the majority, questioned how the 9thth Circuit used the constitutional avoidance doctrine. The Doctrine of avoiding the constitution is the idea that federal courts should avoid constitutional issues if the matter at hand can be resolved for other reasons. Under this teaching, If there are two plausible interpretations of a law and one avoids the invalidation of the law for constitutional reasons, the Court should avoid the invalidation of the law. Justice Alito found that the 9thth Circuit “misused the canon in this case because its interpretation of the three provisions at issue here is implausible.” Echo long-term differences from judicial interpretation, Alito ironic notes “[s]Potting a constitutional question does not give a court the power to rewrite a statute at will. “

According to the majority, this misapplication of the constitutional avoidance doctrine results from the lack of several plausible interpretations of the law. Rather, the opinion describes in detail the clarity of the Staff Regulations perceived by the Court. There is only one plausible interpretation of the statute. Justice Alito to put it succinctly“Nothing in the legal text limits the length of detention.” Specifically for the six month period set by the Court below, Judge Alito Remarks “[h]However far the interpretation of the words “detention” and “custody” goes, nothing in any the relevant provisions provide for a period of 6 months for detention without the possibility of bail. “The Court then referred the case back to Circuit 9 for review Class status and the constitutional issues. The question of whether immigrants can be detained indefinitely according to the constitution remains unanswered.

Justice Breyer observed in his devastating contradiction that “the majority’s interpretation of the statute would likely make the statute unconstitutional”. Judge Breyer quotes United States Jin Fuey MoyI would follow a “practice of interpreting a statute” to avoid not only concluding that it is unconstitutional but also serious doubts in this regard. “Judge Breyer elaborates his serious doubts in eloquent detail: The Constitution does not allow indefinite detention without due process and the right to be bound is the key to this constitutional protection.

However, the majority opinion does not mention this once Jin Fuey Moyand the opinion was determined in the clarity of the statute (“the meaning of the relevant legal provisions is clear”). The quote from Judge Breyer Jin Fuey Moy omits the three words immediately before the statement: “if it is fairly possible.” These three words seem to be at the heart of the disagreement: the majority agree that the statute can only be interpreted in one direction, and the dissent argues that it is quite possible to interpret it in a different way.

Certain detained immigrants still have access to a hearing on another part of the Immigration Act. in the Zadvydas v. DavisIn the majority opinion drawn up by Judge Breyer, the constitutional circumvention doctrine was used in such a way that the Immigration Act implicitly limits the period of time in which an immigrant can be detained after a final deportation decision has been taken. On the surface, this sounds very similar Jenningsindeed the 9thth Circuit relied heavily on Zadvydas when it made its decision. But like in most areas of the legal maze that makes up immigration law, the devil is in the details. There are several parts of the law related to the detention of immigrants, and several phases of the deportation process in which the detention is approved. In short, after Jennings, Zadvydas applies to immigrants who have been rejected under part of the law (8 U.S. Code §1231 (a) (6)) and not the one in Jennings (§§1225 (b), 1226 (a) and 1226 (c)). Despite this, Zadvydas stands still as an “outer border” the doctrine of constitutional avoidance, an instrument for lawyers and a possible confirmation for at least some detained immigrants to remain.

In addition, individual immigrants can still apply Habeas Corpus and question the lawfulness of their detention. In a Habeas Corpus petition, the court is asked to take the petitioner to court and to examine the legality of his ongoing detention. The right to this petition is rooted in the constitution, and applies to immigrants in federal custody.

While this distinction means little to the currently detained immigrants, the outcome of the Supreme Court decision is in Jennings is Not that it applies a judicial seal of approval for the indefinite detention of immigrants without a commitment. Indeed, Jennings explicitly avoids making such a decision and instead closely adheres to incorrect application of legal doctrine to certain parts of the law.

The only thing left to do is to actually apply the constitution to the parts of the statute in question. As legal professor Michael Kagan watched“It will take a little more courage from the judges now. You have to say whether the important provisions on immigration detention enacted by Congress are constitutional, yes or no. There is literally no avoidance option anymore. ” Not only that “[c]Institutional review of individual detention decisions. . . alive” (AILA President Annaluisa Padilla), but also the possibility of the judiciary once and for all declaring current practices in detention of immigrants without hearing bonds unconstitutional.

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