House Report 112-255 - KEEP OUR COMMUNITIES SAFE ACT OF 2011

[House Report 112-255]
[From the U.S. Government Publishing Office]

112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-255

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KEEP OUR COMMUNITIES SAFE ACT OF 2011

_______

October 18, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Smith of Texas, from the Committee on the Judiciary,
submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 1932]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the
bill (H.R. 1932) to amend the Immigration and Nationality Act
to provide for extensions of detention of certain aliens
ordered removed, and for other purposes, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.

CONTENTS

Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 6
Background and Need for the Legislation.......................... 6
Hearings......................................................... 20
Committee Consideration.......................................... 20
Committee Votes.................................................. 20
Committee Oversight Findings..................................... 25
New Budget Authority and Tax Expenditures........................ 25
Congressional Budget Office Cost Estimate........................ 25
Performance Goals and Objectives................................. 26
Advisory on Earmarks............................................. 26
Section-by-Section Analysis...................................... 26
Changes in Existing Law Made by the Bill, as Reported............ 30
Dissenting Views................................................. 41

The Amendment

The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Keep Our Communities Safe Act of
2011''.

SEC. 2. DETENTION OF DANGEROUS ALIENS.

(a) In General.--Section 241(a) of the Immigration and Nationality
Act (8 U.S.C. 1231(a)) is amended--
(1) by striking out ``Attorney General'' each place it
appears, except for the first reference in subsection
(a)(4)(B)(i), and inserting ``Secretary of Homeland Security'';
(2) in paragraph (1), by amending subparagraph (B) to read as
follows:
``(B) Beginning of period.--The removal period begins
on the latest of the following:
``(i) The date the order of removal becomes
administratively final.
``(ii) If the alien is not in the custody of
the Secretary on the date the order of removal
becomes administratively final, the date the
alien is taken into such custody.
``(iii) If the alien is detained or confined
(except under an immigration process) on the
date the order of removal becomes
administratively final, the date the alien is
taken into the custody of the Secretary, after
the alien is released from such detention or
confinement.'';
(3) in paragraph (1), by amending subparagraph (C) to read as
follows:
``(C) Suspension of period.--
``(i) Extension.--The removal period shall be
extended beyond a period of 90 days and the
alien may remain in detention during such
extended period if--
``(I) the alien fails or refuses to
make all reasonable efforts to comply
with the removal order, or to fully
cooperate with the Secretary's efforts
to establish the alien's identity and
carry out the removal order, including
making timely application in good faith
for travel or other documents necessary
to the alien's departure or conspires
or acts to prevent the alien's removal
that is subject to an order of removal;
``(II) a court, the Board of
Immigration Appeals, or an immigration
judge orders a stay of removal of an
alien who is subject to an
administratively final order of
removal; or
``(III) the Secretary transfers
custody of the alien pursuant to law to
another Federal agency or a State or
local government agency in connection
with the official duties of such
agency.
``(ii) Renewal.--If the removal period has
been extended under clause (C)(i), a new
removal period shall be deemed to have begun on
the date--
``(I) the alien makes all reasonable
efforts to comply with the removal
order, or to fully cooperate with the
Secretary's efforts to establish the
alien's identity and carry out the
removal order;
``(II) the stay of removal is no
longer in effect; or
``(III) the alien is returned to the
custody of the Secretary.'';
(4) in paragraph (3)--
(A) by adding after ``If the alien does not leave or
is not removed within the removal period'' the
following: ``or is not detained pursuant to paragraph
(6) of this subsection''; and
(B) by striking subparagraph (D) and inserting the
following:
``(D) to obey reasonable restrictions on the alien's
conduct or activities that the Secretary prescribes for
the alien, in order to prevent the alien from
absconding, for the protection of the community, or for
other purposes related to the enforcement of the
immigration laws.'';
(5) in paragraph (4)(A), by striking ``paragraph (2)'' and
inserting ``subparagraph (B)'';
(6) by striking paragraph (6) and inserting the following:
``(6) Additional rules for detention or release of certain
aliens.--
``(A) Detention review process for cooperative aliens
established.--For an alien who is not otherwise subject
to mandatory detention, who has made all reasonable
efforts to comply with a removal order and to cooperate
fully with the Secretary of Homeland Security's efforts
to establish the alien's identity and carry out the
removal order, including making timely application in
good faith for travel or other documents necessary to
the alien's departure, and who has not conspired or
acted to prevent removal, the Secretary shall establish
an administrative review process to determine whether
the alien should be detained or released on conditions.
The Secretary shall make a determination whether to
release an alien after the removal period in accordance
with subparagraph (B). The determination shall include
consideration of any evidence submitted by the alien,
and may include consideration of any other evidence,
including any information or assistance provided by the
Secretary of State or other Federal official and any
other information available to the Secretary of
Homeland Security pertaining to the ability to remove
the alien.
``(B) Authority to detain beyond removal period.--
``(i) In general.--The Secretary of Homeland
Security, in the exercise of the Secretary's
discretion, may continue to detain an alien for
90 days beyond the removal period (including
any extension of the removal period as provided
in paragraph (1)(C)).
``(ii) Specific circumstances.--The Secretary
of Homeland Security, in the exercise of the
Secretary's discretion, may continue to detain
an alien beyond the 90 days authorized in
clause (i)--
``(I) until the alien is removed, if
the Secretary determines that there is
a significant likelihood that the
alien--
``(aa) will be removed in the
reasonably foreseeable future;
or
``(bb) would be removed in
the reasonably foreseeable
future, or would have been
removed, but for the alien's
failure or refusal to make all
reasonable efforts to comply
with the removal order, or to
cooperate fully with the
Secretary's efforts to
establish the alien's identity
and carry out the removal
order, including making timely
application in good faith for
travel or other documents
necessary to the alien's
departure, or conspires or acts
to prevent removal;
``(II) until the alien is removed, if
the Secretary of Homeland Security
certifies in writing--
``(aa) in consultation with
the Secretary of Health and
Human Services, that the alien
has a highly contagious disease
that poses a threat to public
safety;
``(bb) after receipt of a
written recommendation from the
Secretary of State, that
release of the alien is likely
to have serious adverse foreign
policy consequences for the
United States;
``(cc) based on information
available to the Secretary of
Homeland Security (including
classified, sensitive, or
national security information,
and without regard to the
grounds upon which the alien
was ordered removed), that
there is reason to believe that
the release of the alien would
threaten the national security
of the United States; or
``(dd) that the release of
the alien will threaten the
safety of the community or any
person, conditions of release
cannot reasonably be expected
to ensure the safety of the
community or any person, and
either (AA) the alien has been
convicted of one or more
aggravated felonies (as defined
in section 101(a)(43)(A)) or of
one or more crimes identified
by the Secretary of Homeland
Security by regulation, or of
one or more attempts or
conspiracies to commit any such
aggravated felonies or such
identified crimes, if the
aggregate term of imprisonment
for such attempts or
conspiracies is at least 5
years; or (BB) the alien has
committed one or more crimes of
violence (as defined in section
16 of title 18, United States
Code, but not including a
purely political offense) and,
because of a mental condition
or personality disorder and
behavior associated with that
condition or disorder, the
alien is likely to engage in
acts of violence in the future;
or
``(ee) that the release of
the alien will threaten the
safety of the community or any
person, conditions of release
cannot reasonably be expected
to ensure the safety of the
community or any person, and
the alien has been convicted of
at least one aggravated felony
(as defined in section
101(a)(43)); or
``(III) pending a certification under
subclause (II), so long as the
Secretary of Homeland Security has
initiated the administrative review
process not later than 30 days after
the expiration of the removal period
(including any extension of the removal
period, as provided in paragraph
(1)(C)).
``(C) Renewal and delegation of certification.--
``(i) Renewal.--The Secretary of Homeland
Security may renew a certification under
subparagraph (B)(ii)(II) every 6 months, after
providing an opportunity for the alien to
request reconsideration of the certification
and to submit documents or other evidence in
support of that request. If the Secretary does
not renew a certification, the Secretary may
not continue to detain the alien under
subparagraph (B)(ii)(II).
``(ii) Delegation.--Notwithstanding section
103, the Secretary of Homeland Security may not
delegate the authority to make or renew a
certification described in item (bb), (cc), or
(ee) of subparagraph (B)(ii)(II) below the
level of the Assistant Secretary for
Immigration and Customs Enforcement.
``(iii) Hearing.--The Secretary of Homeland
Security may request that the Attorney General
or the Attorney General's designee provide for
a hearing to make the determination described
in item (dd)(BB) of subparagraph (B)(ii)(II).
``(D) Release on conditions.--If it is determined
that an alien should be released from detention by a
Federal court, the Board of Immigration Appeals, or if
an immigration judge orders a stay of removal, the
Secretary of Homeland Security, in the exercise of the
Secretary's discretion, may impose conditions on
release as provided in paragraph (3).
``(E) Redetention.--The Secretary of Homeland
Security, in the exercise of the Secretary's
discretion, without any limitations other than those
specified in this section, may again detain any alien
subject to a final removal order who is released from
custody, if removal becomes likely in the reasonably
foreseeable future, the alien fails to comply with the
conditions of release, or to continue to satisfy the
conditions described in subparagraph (A), or if, upon
reconsideration, the Secretary determines that the
alien can be detained under subparagraph (B). This
section shall apply to any alien returned to custody
pursuant to this subparagraph, as if the removal period
terminated on the day of the redetention.''; and
(7) by inserting after paragraph (7) the following:
``(8) Judicial review.--Without regard to the place of
confinement, judicial review of any action or decision pursuant
to this section shall be available exclusively in habeas corpus
proceedings instituted in the United States District Court for
the District of Columbia, and only if the alien has exhausted
all administrative remedies (statutory and regulatory)
available to the alien as of right.''.
(b) Detention of Aliens During Removal Proceedings.--
(1) Clerical amendment.--(A) Sections 235 and 236 of the
Immigration and Nationality Act (8 U.S.C. 1225 and 1226) are
amended by striking ``Attorney General'' each place it appears
(except in the second place that term appears in section
236(a)) and inserting ``Secretary of Homeland Security''.
(B) Section 236(a) of the Immigration and Nationality Act (8
U.S.C. 1226(a)) is amended by inserting ``the Secretary of
Homeland Security or'' before ``the Attorney General--''.
(C) Section 236(e) of the Immigration and Nationality Act (8
U.S.C. 1226(e)) is amended by striking ``Attorney General's''
and inserting ``Secretary of Homeland Security's''.
(2) Length of detention of certain aliens; venue for certain
actions.--Section 235 of the Immigration and Nationality Act (8
U.S.C. 1225) is amended by adding at the end the following:
``(e) Length of Detention.--
``(1) Notwithstanding any other provision of this section, an
alien may be detained under this section, without limitation,
until the alien is subject to an final order of removal.
``(2) The length of detention under this section shall not
affect any detention under section 241.
``(f) Judicial Review.--Without regard to the place of confinement,
judicial review of any action or decision made pursuant to subsection
(e) shall be available exclusively in a habeas corpus proceeding
instituted in the United States District Court for the District of
Columbia and only if the alien has exhausted all administrative
remedies (statutory and nonstatutory) available to the alien as of
right.''.
(3) Venue for certain actions seeking judicial review of
length of detention.--Section 236(e) of the Immigration and
Nationality Act (8 U.S.C. 1226(e)) is amended by adding the
following at the end: ``Without regard to the place of
confinement, judicial review of any action or decision made
pursuant to subsection (f) shall be available exclusively in a
habeas corpus proceeding instituted in the United States
District Court for the District of Columbia and only if the
alien has exhausted all administrative remedies (statutory and
nonstatutory) available to the alien as of right.''.
(4) Length of detention.--Section 236 of the Immigration and
Nationality Act (8 U.S.C. 1226) is amended by adding at the end
the following subsection:
``(f) Length of Detention.--
``(1) Notwithstanding any other provision of this section, an
alien may be detained under this section for any period,
without limitation, until the alien is subject to a final order
of removal.
``(2) The length of detention under this section shall not
affect detention under section 241 of this Act.''.
(5) Detention of criminal aliens.--Section 236(c)(1) of the
Immigration and Nationality Act (8 U.S.C. 1226(c)(1)) is
amended, in the matter following subparagraph (D) to read as
follows:
``any time after the alien is released, without regard to
whether an alien is released related to any activity, offense,
or conviction described in this paragraph; to whether the alien
is released on parole, supervised release, or probation; or to
whether the alien may be arrested or imprisoned again for the
same offense. If the activity described in this paragraph does
not result in the alien being taken into custody by any person
other than the Secretary, then when the alien is brought to the
attention of the Secretary or when the Secretary determines it
is practical to take such alien into custody, the Secretary
shall take such alien into custody.''.
(6) Administrative review.--Section 236 of the Immigration
and Nationality Act (8 U.S.C. 1226) is amended by adding at the
end the following subsection:
``(g) Administrative Review.--
``(1) The Attorney General's review of the Secretary's
custody determinations under section 236(a) shall be limited to
whether the alien may be detained, released on bond (of at
least $1,500 with security approved by the Secretary), or
released with no bond.
``(2) The Attorney General's review of the Secretary's
custody determinations for the following classes of aliens:
``(A) Aliens in exclusion proceedings.
``(B) Arriving aliens in removal proceedings,
including aliens paroled after arrival pursuant to
section 212(d)(5).
``(C) Aliens described in sections 212(a)(3) and
237(a)(4).
``(D) Aliens described in section 236(c).
``(E) Aliens in deportation proceedings subject to
section 242(a)(2) of the Act (as in effect prior to
April 1, 1997, and as amended by section 440(c) of
Public Law 104-132); is limited to a determination of
whether the alien is properly included in such
category.''.
(7) Clerical amendments.--(A) Section 236(a)(2)(B) of the
Immigration and Nationality Act (8 U.S.C. 1226(a)(2)(B)) is
amended by striking out ``conditional parole'' and inserting in
lieu thereof ``recognizance''.
(B) Section 236(b) of the Immigration and Nationality Act (8
U.S.C. 1226(b)) is amended by striking ``parole'' and inserting
``recognizance''.
(c) Severability.--If any of the provisions of this Act or any
amendment by this Act, or the application of any such provision to any
person or circumstance, is held to be invalid for any reason, the
remainder of this Act and of amendments made by this Act, and the
application of the provisions and of the amendments made by this Act to
any other person or circumstance shall not be affected by such holding.
(d) Effective Dates.--
(1) The amendments made by subsection (a) shall take effect
upon the date of enactment of this Act, and section 241 of the
Immigration and Nationality Act, as so amended, shall in
addition apply to--
(A) all aliens subject to a final administrative
removal, deportation, or exclusion order that was
issued before, on, or after the date of enactment of
this Act; and
(B) acts and conditions occurring or existing before,
on, or after the date of enactment of this Act.
(2) The amendments made by subsection (b) shall take effect
upon the date of enactment of this Act, and sections 235 and
236 of the Immigration and Nationality Act, as so amended,
shall in addition apply to any alien in detention under
provisions of such sections on or after the date of enactment
of this Act.

SEC. 3. SENSE OF THE CONGRESS.

It is the sense of the Congress that--
(1) this Act should ensure that Constitutional rights are
upheld and protected; and
(2) it is the intention of the Congress to uphold the
Constitutional principles of due process and that due process
of the law is a right afforded to everyone in the United
States.

Purpose and Summary

H.R. 1932 allows for the continued detention of dangerous
aliens who cannot be removed and strengthens the Department of
Homeland Security's ability to detain criminal aliens in
removal proceedings.

Background and Need for the Legislation

I. CONTINUED DETENTION OF DANGEROUS ALIENS
WHO CANNOT BE REMOVED

The Supreme Court's decisions in Zadvydas v. Davis\1\ and
Clark v. Martinez\2\ have interpreted current immigration law
to limit the length of detention of aliens who have received
orders of removal but who cannot be removed. As a result of
these decisions, each year the Department of Homeland Security
(``DHS'') must release thousands of criminal aliens into
communities in the United States. The Keep Our Communities Safe
Act amends the Immigration and Nationality Act (``INA'') to
provide DHS with a statutory basis to continue to detain
dangerous aliens who cannot be removed.
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\1\See 533 U.S. 678 (2001).
\2\See 543 U.S. 371 (2005).
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Zadvydas and Clark
In the 2001 decision in Zadvydas v. Davis, the Supreme
Court ruled that under current immigration law, aliens who were
admitted to the U.S. and then ordered removed cannot be
detained for more than six months if there is no reasonable
likelihood of their being removed (in the case of Zadvydas,
because countries could not be found that would accept the
aliens ordered removed). Zadvydas interpreted section 241(a)(6)
of the INA, that provides that ``[a]n alien ordered removed who
is inadmissible . . . , removable [for violating a condition or
entry, being convicted of certain crimes or on security
grounds] or who has been determined . . . to be a risk to the
community or unlikely to comply with the order of removal, may
be detained beyond the removal period [generally, a period
lasting 90 days after the order of removal becomes
administratively final].''
The Court read section 241(a)(6) to ``contain an implicit
`reasonable time' limitation'' that was ``[b]ased on our
conclusion that indefinite detention of aliens [beyond the
removal period] would raise serious constitutional concerns. .
. .''\3\ The Court stated that ``when an Act of Congress raises
`a serious doubt' as to its constitutionality, `this Court will
first ascertain whether a construction of the statute is fairly
possible by which the question may be avoided.'''\4\ The Court
decided to read section 241(a)(6) to ``limit[] an alien's post-
removal-period detention to a period reasonably necessary to
bring about that alien's removal from the United States.''\5\
After six months of post-removal detention, an alien cannot be
detained if there is not a significant likelihood of removal in
the reasonably foreseeable future.\6\
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\3\Zadvydas, 533 U.S. at 682.
\4\Id. at 689, quoting Crowell v. Benson, 285 U.S. 22, 62 (1932).
\5\Zadvydas, 533 U.S. at 689.
\6\See id. at 701.
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The Court stated that, ``[t]he Fifth Amendment's Due
Process Clause forbids the Government to `depriv[e]' any
`person . . . of . . . liberty . . . without due process of
law.' Freedom from imprisonment . . . lies at the heart of the
liberty that Clause protects.''\7\ The Court found that
``[t]here is no sufficiently strong special justification here
for indefinite civil detention. . . .''\8\ However, the Court's
very next words--``at least as administered under this
statute''\9\--point to the fact that it was especially
concerned with the breadth of the grounds of inadmissibility
encompassed by section 241(a)(6). The Court later pointed out
that ``[t]he provision authorizing detention does not apply
narrowly to `a small segment of particularly dangerous
individuals,' . . . say, suspected terrorists, but broadly to
aliens ordered removed for many and various reasons, including
tourist visa violations'' and that ``the statute before us
applies not only to terrorists and criminals, but also to
ordinary visa violators. . . .''\10\
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\7\Id. at 690.
\8\Id.
\9\Id. (emphasis added).
\10\Id. at 691, 697 (citation omitted).
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In Clark, the Court expanded its decision in Zadvydas to
apply to non-admitted aliens.
Principal Reasons Why Aliens Ordered Removed Cannot Be Removed
There are two principal reasons why aliens ordered removed
from the U.S. cannot in fact be removed. First, DHS's Office of
Inspector General reported that ``as of June 2004, more than
133,662 illegal aliens with or pending final orders [of
removal] had been apprehended and released into the U.S . . .
are unlikely to ever be repatriated if ordered removed because
of the unwillingness of their country of origin to provide the
documents necessary for repatriation.''\11\ The report went on
to describe a variety of means that nations used to frustrate
the removal process.\12\
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\11\Department of Homeland Security Office of the Inspector
General, Detention and Removal of Illegal Aliens (April 2006) at 18.
\12\See id. at 17. Section 243(d) of the INA requires the Secretary
of State to stop issuing visas to nationals of countries the Secretary
of Homeland Security determines to have refused or delayed the return
of their nationals who have been ordered deported. However, it is used
sparingly because of diplomatic ramifications.
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The second involves the Convention Against Torture
(``CAT''). Legislation enacting CAT was enacted in 1998.\13\
Its primary aim is ensuring that human rights violators and
others engaged in torture are brought to justice and details
the process for extradition, detention, criminal prosecution,
and victim compensation. CAT also prohibits the return of an
alien to a country where there are substantial grounds for
believing that he or she would be in danger of being tortured.
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\13\See the Foreign Affairs Reform and Restructuring Act of 1998,
Pub. L. No. 105-277, div. G., sec. 2242 (1998).
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The implementing legislation for CAT stated that ``[t]o the
maximum extent consistent with the obligations of the United
States under the Convention . . . the regulations . . . shall
exclude from the protection of such regulations aliens
described in section 241(b)(3)(B)'' of the [INA].\14\ The
aliens described in section 241(b)(3)(B) consist of aliens who
1) have participated in persecution, 2) have engaged in
terrorist activity, 3) have been convicted of particularly
serious crimes and are thus a danger to the community of the
United States, 4) have committed serious crimes outside the
U.S., or 5) there are reasonable grounds to believe are a
danger to the security of the U.S. This group of aliens who are
eligible for CAT relief consists of aliens who are barred under
the Immigration and Nationality Act from receiving asylum and
others forms of immigration relief.\15\
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\14\Id. at sec. 2242(c).
\15\See INA sec. 208(b)(2).
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Unfortunately, the Department of Justice disregarded
Congress's wishes to exclude such aliens from CAT's relief from
removal. The regulations provide relief from removal to all
aliens, no matter how dangerous.\16\ In fact, the more heinous
an alien's actions, the more likely that they might be subject
to torture in their home country. As the 9th Circuit has
stated, ``even those who assisted in Nazi persecutions, or
engaged in genocide, or pose a danger to our own security are
not excluded from the protections of CAT.''\17\ Among the
criminal aliens who have received CAT relief was an alien
implicated in a mob-related quintuple homicide in Uzbekistan
and an alien who killed a spectator at a Gambian soccer
match.\18\ Terrorists have received relief from removal under
CAT, including an alien involved in the assassination of Anwar
Sadat.\19\ And, yes, even a Nazi war criminal has sought to
avoid deportation through CAT.\20\
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\16\See 8 C.F.R. sec. 208.16-18.
\17\Edu v. Holder, 624 F.3d 1137, 1145 (9th Cir. 2010).
\18\See Immigration Relief Under the Convention Against Torture for
Serious Criminals and Human Rights Violators: Hearing Before the
Subcomm. on Immigration, Border Security and Claims of the House Comm.
on the Judiciary at 1-2 (statement of John Hostettler, Chairman,
Subcommittee on Immigration, Border Security and Claims).
\19\See Soliman v. U.S., 296 F.3d 1237 (11th Cir. 2002). See also,
e.g., Haile v. Holder, No. 06-74309/09-70779 (9th Cir. Sept. 26, 2011).
\20\See Immigration Relief Under the Convention Against Torture for
Serious Criminals and Human Rights Violators at 15 (statement of Eli
Rosenbaum, Director, Office of Special Investigations, U.S. Department
of Justice).
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The Impact of Zadvydas and Clark on Public Safety
DHS has provided the Committee with data that shows that
thousands of criminal aliens have been released into American
communities as a result of the Supreme Court's interpretation
of section 241(a)(6). In fiscal year 2009, criminal aliens who
have yet to be removed were released 3,847 times on the basis
of the decisions; in fiscal year 2010, criminal aliens were
released 3,882 times.\21\ As far back as 2005, almost 900
criminal aliens ordered removed had received CAT relief and had
then been released from detention as a result of Zadvydas and
Clark.\22\
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\21\Information provided by DHS.
\22\See H.R. Rep. No. 109-345, pt. 1, at 69 (2005).
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Administration officials have long believed that as a
result of the decisions, ``there are instances where the
government is forced to release aliens who have final orders of
removal, though they may pose grave threats to the
public.''\23\ Jonathan Cohn, then-Deputy Assistant Attorney
General, testified that because of the decisions, ``the
government is [now] required to release numerous rapists, child
molesters, murderers, and other dangerous illegal aliens into
our streets. . . . [V]icious criminal aliens are now being set
free within the U.S.''\24\ Among the criminal aliens who have
been released was a man who murdered his wife in the presence
of their seven-year-old daughter, despite the fact that the
government alleged that he had a harm threatening mental
illness.\25\ Jonathan Cohn testified that:
---------------------------------------------------------------------------
\23\Immigration Relief Under the Convention Against Torture for
Serious Criminals and Human Rights Violators at 14 (statement of C.
Stewart Verdery, Assistant Secretary for Border and Transportation
Security Policy and Planning, Department of Homeland Security) .
\24\Strengthening Interior Enforcement: Deportation and Related
Issues: Hearing Before the Subcomm. on Immigration, Border Security and
Citizenship and the Subcomm. on Terrorism, Technology and Homeland
Security of the Senate Comm. on the Judiciary, 109th Cong. at 74 (2005)
(statement of Jonathan Cohn, Deputy Assistant Attorney General, Civil
Division, U.S. Department of Justice).
\25\See Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008).

Another example is Tuan Thai, who has raped, tortured,
and terrorized women and vowed to repeat his grisly
acts. Among other crimes, Mr. Thai repeatedly raped his
friend's girlfriend over the course of several months,
beginning while she was 6 months' pregnant. He then
monitored her phone calls and threatened to poison her
with cocaine and harm her other children if she tried
to kick him out of the house. He also threatened to
beat up his own girlfriend slowly until she died. And
he later threatened to kill his immigration judge and
prosecutor after his release.\26\
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\26\Strengthening Interior Enforcement at 9.

Aliens released on the basis of the decisions have gone on
to commit further crimes. For instance, one was subsequently
arrested for shooting a New York State trooper in the head.\27\
Tragically, in at least two instances, aliens released on the
basis of the decisions subsequently went on to commit murder.
---------------------------------------------------------------------------
\27\See H.R. Rep. No. 109-345, pt. 1, at 69.
---------------------------------------------------------------------------
Huang Chen entered the U.S. in 1997 on a temporary visa and
then overstayed. He assaulted Qian Wu in 2006 and was put in
deportation proceedings. After an immigration judge ordered him
removed, DHS tried to obtain travel documents from the People's
Republic of China. China refused to grant Chen the necessary
documents. After six months of detention, DHS released Chen
pursuant to the decisions. In August 2008, Chen was convicted
of assault and DHS tried to deport him. Again, China refused to
issue travel documents. He was again released pursuant to the
decisions. Chen then murdered Ms. Wu. According to news
reports, the victim's heart and lungs were ripped from the
body.\28\
---------------------------------------------------------------------------
\28\Information provided by DHS; see also Michael Schmidt, Neighbor
Charged with Stalking and Killing Woman, N.Y. Times, Jan. 27, 2010.
---------------------------------------------------------------------------
Abel Arango came from Cuba and entered through Miami in the
early 1990s, and then began a life of crime in Florida. He
served time in prison for armed robbery. He was released from
prison in 2004, and was supposed to be deported; however, Cuba
wouldn't take him back. Arango was released from immigration
custody pursuant to the decisions. Thereafter, he shot Ft.
Myers, Florida police officer Andrew Widman at close range in
the face. The officer never had the opportunity to draw his
weapon. The husband and father of three died at the scene, and
Arango died in a shoot out with police.\29\
---------------------------------------------------------------------------
\29\Information provided by DHS; see also H.R. 1932, the ``Keep Our
Communities Safe Act of 2011'': Hearing Before the Subcomm. on
Immigration Policy and Enforcement of the House Comm. on the Judiciary,
112th Congress (2011) (statement of Douglas Baker, Chief of Police,
Fort Myers, Florida, Police Department).
---------------------------------------------------------------------------
Post-Zadvydas Regulations
In 2002, the Department of Justice (``DOJ'') issued
regulations that provide a procedure under the authority of
section 241(a)(6) for the detention of aliens ordered removed
whose removal is not reasonably foreseeable but who are deemed
to pose a special danger to the public:\30\
---------------------------------------------------------------------------
\30\See 8 C.F.R. sec. 241.14(f).

[DHS] shall continue to detain an alien if the release
of the alien would pose a special danger to the public,
because: i) [t]he alien has previously committed one or
more crimes of violence as defined in 18 U.S.C. 16; ii)
[d]ue to a mental condition or personality disorder and
behavior associated with that condition or disorder,
the alien is likely to engage in acts of violence in
the future; and iii) [n]o conditions of release can
reasonably be expected to ensure the safety of the
public.\31\
---------------------------------------------------------------------------
\31\8 C.F.R. sec. 241.14(f)(1).

Proceedings are divided into two phases: a reasonable cause
hearing and continued detention review merit hearings. In the
initial phase, an alien who is detained and has been ordered
removed may request that DHS determine whether there is a
significant likelihood of removal in the reasonably foreseeable
future. If there is not, the alien must be released unless
based on a medical and physical evaluation DHS determines that
the alien should not be released because they would pose a
special danger to the public.\32\
---------------------------------------------------------------------------
\32\See 8 C.F.R. sec. 241.14(f)(1)-(3).
---------------------------------------------------------------------------
If DHS finds the alien poses a special danger, the case is
referred to an Immigration Judge for a reasonable cause
hearing. This hearing is to determine whether DHS's evidence is
sufficient to establish reasonable cause to proceed with a
continued detention review merits hearing or whether the alien
should be released. If the Immigration Judge finds that DHS has
shown reasonable cause, the alien is notified and a merits
hearing is scheduled. However, if the Immigration Judge finds
that DHS has not met its burden, the proceedings are dismissed
and the alien is released.\33\
---------------------------------------------------------------------------
\33\See 8 C.F.R. sec. 241.14(h).
---------------------------------------------------------------------------
In the continued detention review merits hearing, which
must be held promptly, DHS has the burden of proving ``by clear
and convincing evidence, that the alien should remain in
custody because the alien's release would pose a special danger
to the public. . . .''\34\ If the Immigration Judge finds that
DHS has met its burden, the judge shall order the continued
detention of the alien. Otherwise, the proceedings are
dismissed.\35\
---------------------------------------------------------------------------
\34\8 C.F.R. sec. 241.14(i)(1).
\35\See 8 C.F.R. sec. 241.14(i)(3)-(4).
---------------------------------------------------------------------------
The regulations provide for periodic review of continued
detention.\36\ A detained alien may request that DHS review the
continued detention order, but not earlier than six months
after the most recent decision.\37\ In order to win release
from detention, the alien must show that due to a ``material
change in circumstances,'' their release ``would no longer pose
a special danger to the public. . . .''\38\ If DHS does not
release the alien, the alien may file a motion with the
immigration judge to set aside the prior determination, and the
alien's burden is the same--that, due to a material change in
circumstances, his release would no longer pose a special
danger to the public.\39\ If the Immigration Judge grants the
motion, a new merits hearing is held.\40\
---------------------------------------------------------------------------
\36\See 8 C.F.R. sec. 241.14(k)(1).
\37\See 8 C.F.R. sec. 241.14(k)(2)-(3).
\38\8 C.F.R. sec. 241.14(k)(4).
\39\See 8 C.F.R. sec. 241.14(k)(6).
\40\See id.
---------------------------------------------------------------------------
The Federal circuits have split as to whether the
regulations have a valid basis under section 241(a)(6).\41\
---------------------------------------------------------------------------
\41\Compare Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir.
2008) (regulations have a valid basis), with Tran, 515 F.3d at 478 (no
valid basis); Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004) (no valid
basis).
---------------------------------------------------------------------------
The Keep Our Community Safe Act
H.R. 1932 provides new statutory authorization for DHS to
detain for extended periods dangerous aliens ordered removed
who cannot be removed. As Thomas Dupree, Jr., former Principal
Deputy Assistant Attorney General, told the Committee:

The need for [the Keep Our Communities Safe Act] is
acute. . . . [U]nder current law, the government is
compelled to set dangerous criminals loose on the
streets of the United States. . . . There is absolutely
no reason to leave uncorrected a law that compels the
release of some of the most dangerous and deranged
individuals in Federal custody. Often their home
countries do not want them back precisely because their
crimes were so heinous. . . . The [bill] will protect
the American people by giving the Department of
Homeland Security and the Department of Justice the
legal tools they need to keep these dangerous predators
off our streets.\42\
---------------------------------------------------------------------------
\42\H.R. 1932, the ``Keep Our Communities Safe Act of 2011''.

Under the bill, if DHS wants to continue detention of an
alien beyond 90 days following the removal period, a DHS
official not below the level of the Assistant Secretary for
Immigration and Customs Enforcement may continue detention
until removal after certifying (or pending a certification)
that 1) the alien has a highly contagious disease that poses a
threat to public safety, 2) release of the alien is likely to
have serious adverse foreign policy consequences, 3) there is
reason to believe that release would threaten national
security, or 4) release of the alien will threaten the safety
of the community or any person, conditions of release cannot
reasonably be expected to ensure their safety, and either the
alien has been convicted of an aggravated felony or certain
other crimes (or attempts or conspiracies to commit these
crimes) or the alien has committed a crime of violence and
because of a mental condition or personality disorder and
behavior associated with that condition or disorder, the alien
is likely to engage in acts of violence in the future.
DHS must renew such a certification every six months for as
long as it wants to continue detention of the alien. In the
absence of a certification, the alien is to be released,
although conditions may be imposed and re-detention is
possible.
Constitutionality of the Post-Zadvydas Regulations and the Keep Our
Communities Safe Act
The Supreme Court clearly indicated in Clark that Congress
has the power to amend the INA to provide for the continued
detention beyond the removal period of aliens where the
national interest in detention is great. In fact, the Court
seemingly encouraged Congress to act, stating that ``[t]he
Government fears that the security of our borders will be
compromised if it must release into the country inadmissible
aliens who cannot be removed. If that is so, Congress can
attend to it.''\43\ In the corresponding footnote, the Court
stated that ``[t]hat Congress has the capacity to do so is
demonstrated by its reaction to our decision in Zadvydas. Less
than four months after the release of our opinion, Congress
enacted [section 412(a) of the USA PATRIOT Act, found at
section 236A(a)(6) of the INA] which expressly authorized
continued detention, for a period of six months beyond the
removal period (and renewable indefinitely) [of terrorist
aliens].''\44\ Section 236A(a)(6) allows for continued
detention after the removal period of terrorist aliens not only
if their release will threaten the national security, but also
if release will threaten ``the safety of the community or any
person.'' This rationale--to protect the safety of the
community or any person--that the Court looked favorably upon
is precisely the reason why the Keep Our Communities Safe Act
provides for the continued detention of dangerous aliens.
---------------------------------------------------------------------------
\43\Clark, 543 U.S. at 385.
\44\Id. at n.8.
---------------------------------------------------------------------------
Additionally, the 10th Circuit in the 2008 decision of
Hernandez-Carrera v. Carlson clearly indicates that the bill
will be upheld as constitutional.\45\ In that case, the 10th
Circuit upheld the post-Zadvydas regulations that closely
mirror the Keep Our Communities Safe Act. The 10th Circuit
stated that:
---------------------------------------------------------------------------
\45\See Hernandez-Carrera, 547 F.3d at 1237.

In Zadvydas, the government argued that by the clear
terms of [section 241(a)(6) of the Immigration and
Naturalization Act], Congress did not place a ``limit
on the length of time beyond the removal period that an
alien who falls within one of the [provision's]
categories may be detained.''. . . Far from limiting
the Attorney General's detention authority to ``a small
segment of particularly dangerous individuals,'' . . .
this reading would have authorized the detention of any
removable alien under [section 241(a)(6)] without
regard to an alien's dangerousness or special
characteristics. . . . As the Supreme Court pointed
out, this construction suggested, at its limits, that
Congress had authorized the Attorney General to
permanently detain an alien guilty only of a tourist
visa violation. . . .
. . . .

[Under the regulations, d]etention beyond the removal
period is authorized only in situations where the
government's interest in an alien's continued detention
is particularly strong: in the cases of 1) aliens with
a highly contagious disease that is a threat to public
safety; 2) aliens detained on account of serious
adverse foreign policy consequences of release; 3)
aliens detained on account of security or terrorism
concerns; and 4) aliens determined to pose a special
danger to the public. . . . Therefore, in contrast to
the expansive scope of ICE's detention authority
advanced by the government in Zadvydas, the Attorney
General has now interpreted [section 241(a)(6)] only to
authorize continued detention for a ``small segment . .
. of individuals'' whose release would particularly
endanger the public's health or safety . . . or the
nation's foreign relations.
. . . .

We are confident . . . that due process is satisfied
here. . . . [W]e note that it is not at all clear that
removable aliens benefit from precisely the same
advantages of due process as do citizens or lawful
permanent resident aliens. To be sure, ``the Due
Process Clause applies to all 'persons' within the
United States, including aliens. . . . However, the
nature of the protection an alien is due ``may vary
depending upon status and circumstance.'' . . . ``The
fact that all persons, aliens and citizens alike, are
protected by the Due Process Clause does not lead to
the further conclusion that all aliens are entitled to
enjoy all the advantages of citizenship. . . .
. . . .

[T]he Attorney General's statutory interpretation
raises no serious constitutional question. . . .\46\
---------------------------------------------------------------------------
\46\Id. at 1252-54, 1256 (citations omitted). The Supreme Court in
Zadvydas similarly stated that ``the Due Process Clause protects an
alien subject to a final order of deportation . . . though the nature
of that protection may vary depending upon status and circumstances. .
. .'' 533 U.S. at 693-94 (citations omitted and emphasis added). And in
the later case of Demore v. Kim, the Court found that ``this Court has
firmly and repeatedly endorsed the proposition that Congress may make
rules as to aliens that would be unacceptable if applied to citizens.''
538 U.S. 510, 522 (2003) (citation omitted).

The Committee believes that the decisions in the 5th and
9th Circuits finding the regulations invalid were wrongly
decided.\47\ Since the regulations are not constitutionally
infirm, this bill, which conforms closely to the regulations,
is also not constitutionally infirm. As Thomas Dupree, Jr.,
told the Committee:
---------------------------------------------------------------------------
\47\Judge Kozinski, in dissenting to a 9th Circuit order denying a
petition for rehearing, explained why Thai was wrongly decided. ``The
Supreme Court, confronted with a very broad statute, narrowed its scope
to avoid unconstitutionality, but the Court's method of narrowing is
not the only permissible one. The Attorney General, pursuant to his
statutory delegation of regulatory authority, has selected a different
method of conforming the statute to the requirements of the
Constitution: He has accepted the six month limitation as to most
aliens and has provided stringent procedural protections for narrow
classes of aliens who are believed to be a danger to the community.''
Thai v. Ashcroft, 389 F.3d 967, 971 (9th Cir. 2004) (Kozinski,
dissenting).

[T]he bill appropriately addresses the constitutional
concerns identified by the Zadvydas Court. . . . It
narrows the potential sweep of the post-removal-
detention statute by limiting it to a small segment of
particularly dangerous individuals. It provides for
regular and individualized assessments of the need for
continued detention by high-level officials within the
Department of Homeland Security, as well as the
opportunity to have those assessments reviewed by a
Federal court.\48\
---------------------------------------------------------------------------
\48\H.R. 1932, the ``Keep Our Communities Safe Act of 2011''.

However, even were the decisions invalidating the
regulations decided correctly, that would only go to show that
the regulations were invalid interpretations of section
241(a)(6) of the INA.\49\ It would not lead to the conclusion
that Congress could not enact legislation mirroring the text of
the regulations. As the 5th Circuit stated:
---------------------------------------------------------------------------
\49\As the 9th Circuit found, ``[b]ecause the Government may not
detain [the appellee] under [section 241(a)(6)], the . . . regulations,
which were enacted under the authority of that statute, cannot
authorize [the appellee's] continued and potentially indefinite
detention.'' Thai, 366 F.3d at 799.

While this Court is sympathetic to the Government's
concern for public safety, we are without power to
authorize . . . continued detention. . . . We note
however that in a similar circumstance where public
safety was also of great concern, Congress took prompt
action to address the issue. In particular, in the
field of national security, Congress enacted the
Patriot Act which authorizes detention beyond the
removal period of any alien whose removal is not
foreseeable for additional periods of up to six months
if the alien presents a national security threat. . . .
Thus, not only are the Government's concerns properly
directed to Congress, but importantly Congress has
shown that it has the authority and willingness to
address these concerns.\50\
---------------------------------------------------------------------------
\50\See Tran, 515 F.3d at 485. And the 9th Circuit stated that
``[w]e also do not speak to the possibility that Congress could enact a
statute that explicitly allows for Federal civil commitment of aliens
who pose a danger to the community due to their mental conditions.''
Thai, 366 F.3d at 799.
---------------------------------------------------------------------------
Adequacy of Civil Commitment Laws
It is sometimes argued that the continued detention
provisions of the Keep Our Communities Safe Act are unnecessary
because dangerous aliens can be kept off our streets through
Federal or state civil commitment laws. Unfortunately, such
laws are inadequate. The Supreme Court has ruled that civil
commitment laws can only be used against persons who ``suffer
from a volitional impairment rendering them dangerous beyond
their control'' because of a mental illness or abnormality.\51\
---------------------------------------------------------------------------
\51\Kansas v. Hendricks, 521 U.S. 346, 358 (1997).
---------------------------------------------------------------------------
Aliens who are sane but highly dangerous cannot be subject
to civil confinement.\52\ This is true even if they have
antisocial personalities that sometimes lead to aggressive
conduct and for which there is no effective treatment.\53\ It
means that aliens who are mentally ill and highly dangerous but
found to be able to control their dangerousness cannot be
subject to civil containment. Most dangerous aliens are beyond
the reach of civil commitment laws.
---------------------------------------------------------------------------
\52\See id.
\53\See Foucha v. Louisiana, 504 U.S. 71, 82 (1992). Also see
Sravanthi Pajerla & Alan Felthous, The Paradox of Psychopathy,
Psychiatric Times, Nov. 1, 2007 (``High scores on the Psychopathy
Checklist Revised . . . have been shown to be strong predicators of
criminal and especially violent recidivism among prisoners.'').
---------------------------------------------------------------------------

II. EXTENSION OF ZADVYDAS AND CLARK TO
NON POST-REMOVAL PERIOD CASES

Section 236(c) of the INA provides that the government
``shall take into custody'' individuals who are inadmissible or
deportable under various criminal and terrorist grounds. Why
did Congress provide for mandatory detention of such aliens?
First, because Congress did not want Americans to be
unnecessarily put at risk. As Justice Kennedy has stated,
``[a]ny suggestion that aliens who have completed prison terms
no longer present a danger simply does not accord with the
reality that a significant risk may still exist. . . .''\54\
---------------------------------------------------------------------------
\54\Zadvydas, 533 U.S. at 714 (Kennedy, J., dissenting).
---------------------------------------------------------------------------
The recidivism rate of criminal immigrants after release
from detention is extremely high. In 1999, the Judiciary
Committee subpoenaed the Justice Department for information on
inadmissible or deportable aliens who were released from INS
custody and then subsequently convicted of additional crimes.
The resulting information revealed that of the 35,318 criminal
aliens whom INS released between 1994 and 1999, 37% had been
convicted of another crime in the United States by 2000.\55\
The Supreme Court has stated that ``Congress [was] justifiably
concerned that deportable criminal aliens who are not detained
continue to engage in crime. . . .''\56\ The Court noted that
``deportable criminal aliens who remained in the United States
often committed more crimes before being removed. One 1986
study showed that, after criminal aliens were identified as
deportable,77% were arrested at least one more and 45%--nearly
half--were arrested multiple times before their deportation
proceedings even began.''\57\
---------------------------------------------------------------------------
\55\See H.R. Rept. 106-1048 at 256-57 (2001) .
\56\Demore, 538 U.S. at 510.
\57\Id. at 518.
---------------------------------------------------------------------------
Second, when illegal and criminal aliens in removal
proceedings are not detained, many simply abscond and become
fugitives--as do most of those ordered removed. Department of
Justice records reveal that since 1996, nearly 770,000 non-
detained aliens in removal proceedings failed to appear in
court, 40% of all those not detained.\58\ Of all removal orders
against aliens who were not detained, 78% represented aliens
who failed to show up in court.\59\
---------------------------------------------------------------------------
\58\See Mark Metcalf, Built to Fail: Deception and Disorder in
America's Immigration Courts, 2011 Center for Immigration Studies at 17
nn.40, 47.
\59\See id. at 17 n.47.
---------------------------------------------------------------------------
What happens when non-detained aliens abscond and are then
ordered removed? They are almost never deported. The Department
of Justice's Office of the Inspector General found that the INS
was only able to remove 13% of nondetained aliens with final
orders of removal.\60\ This is why U.S. Immigration and Customs
Enforcement (``ICE'') has told the Committee that almost
500,000 immigrant fugitives now roam our streets.\61\
---------------------------------------------------------------------------
\60\See U.S. Department of Justice, Office of the Inspector
General, Evaluation and Inspections Division, The Immigration and
Naturalization Service's Removal of Aliens Issued Final Orders i, ii
(2003).
\61\Information provided by ICE.
---------------------------------------------------------------------------
The Supreme Court well understands these concerns. It has
held in Demore v. Kim that ``Congress [was] justifiably
concerned that deportable criminal aliens who are not detained
. . . fail to appear for their removal hearings in large
numbers. . . .''\62\ It noted that ``Congress also had before
it evidence that one of the major causes of the INS' failure to
remove deportable criminal aliens was the agency's failure to
detain those aliens during their deportation proceedings''\63\
and that a study ``strongly support[ed] Congress' concern that,
even with individualized screening, releasing deportable
criminal aliens on bond would lead to an unacceptable rate of
flight.''\64\
---------------------------------------------------------------------------
\62\Demore, 538 U.S. at 513.
\63\Id. at 519.
\64\Id. at 520.
---------------------------------------------------------------------------
Because of these considerations, the Court ruled that the
mandatory detention in section 236(c) did not violate the Due
Process Clause of the Fifth Amendment--``Congress . . . may
require that persons such as [the criminal alien] respondent be
detained for the brief period necessary for their removal
proceedings.''\65\
---------------------------------------------------------------------------
\65\Id. at 513.
---------------------------------------------------------------------------
The Court took pains to make clear that while the
respondent relied heavily on the Court's ruling in Zadvydas in
arguing that section 236(c) was unconstitutional, Zadvydas was
``materially different.''\66\ First, in Zadvydas, the goal of
detention--ultimate removal--was no longer practically
attainable while in the present case, ``detention of deportable
criminal aliens pending their removal proceedings . . .
necessarily serves the purpose of preventing deportable
criminal aliens from fleeing prior to or during their removal
proceedings, thus increasing the chance that, if ordered
removed, the aliens will be successfully removed.''\67\
---------------------------------------------------------------------------
\66\Id. at 527.
\67\Id. at 527-28 (emphasis in original).
---------------------------------------------------------------------------
Second, ``[w]hile the period of detention at issue in
Zadvydas was `indefinite' and `potentially permanent' . . . the
detention here is of a much shorter duration.''\68\
Importantly, ``post-removal period detention, unlike detention
pending a determination of removability . . . , has no obvious
termination point.''\69\
---------------------------------------------------------------------------
\68\Id. at 528 (citation omitted).
\69\Id. at 529 (quoting Zadvydas at 697, emphasis added in Demore).
---------------------------------------------------------------------------
The Demore Court also noted that the respondent himself had
worked to extend the length of his detention by requesting a
continuance of his removal hearing.\70\ This brings up the
specter of aliens and their attorneys intentionally using
dilatory tactics in removal proceedings in order to force their
release.
---------------------------------------------------------------------------
\70\See id. at 531.
---------------------------------------------------------------------------
There is another reason why Zadvydas-type post-removal
period detention is fundamentally different from detention
during the removal process--and therefore why the same
constitutional considerations don't arise. Aliens in the
removal process generally hold the keys to their own cells--
they can accept removal and quickly win release from detention.
Aliens in post-removal period detention generally do not have
this ability.
Unfortunately, in the years following Demore, some Federal
courts have tried to turn the decision on its head. They have
ruled that mandatory detention under section 236(c) for more
than a few months is likely unconstitutional and therefore,
under the doctrine of constitutional avoidance, the provision
should be read to not require continued detention of criminal
aliens. In Tijani v. Willis, the 9th Circuit ruled that:

[It is] constitutionally doubtful that Congress may
authorize imprisonment [under section 236(c)] of [over
two years and eight months] for lawfully admitted
resident [criminal] aliens who are subject to removal.
. . . To avoid deciding the constitutional issue, we
interpret the authority conferred by [section 236(c)]
as applying to expedited removal of criminal aliens.
Two years and eight months of process is not
expeditious; and the foreseeable process in this court
. . . is a year or more.\71\
---------------------------------------------------------------------------
\71\430 F.3d 1241, 1242 (2005).

Therefore, the case was remanded so that an Immigration Judge
could grant the alien bail unless the government could
establish that the alien was a flight risk or a danger to the
community.\72\
---------------------------------------------------------------------------
\72\Id.
---------------------------------------------------------------------------
The decision in Tijani has no foundation in Zadvydas. As
the dissenting judge in Tijani stated, at the very most,
``[t]he constitutional limit, if any, to the duration of an
alien's detention under [section 236(c)] was left open by the
Supreme Court in Demore.''\73\ Alternately, he stated, the
Court was ``holding that because the removal proceedings are by
definition finite, there is no constitutional limit to the
duration of detention under [section 236(c)].''\74\ After all,
``[t]he reasons for detaining criminal aliens pending removal
do not diminish over the duration of their detention.''\75\
---------------------------------------------------------------------------
\73\Id. at 1252 (Callahan, J., dissenting).
\74\Id. (footnote omitted).
\75\Id. at 1252 n.5.
---------------------------------------------------------------------------
Then, in Casas-Castrillon v. Department of Homeland
Security, the 9th Circuit ruled that a criminal alien being
detained pursuant to section 236(c) who receives a final
removal order (upheld by the Board of Immigration Appeals) and
then challenges that order in Federal circuit court is not
subject to mandatory detention under section 236(c) after the
court issues a stay of removal, but only to discretionary
detention under section 236(a) of the INA.\76\ Section 236(a)
does provide for release of an alien on bond, and the 9th
Circuit ruled that did it not, the statute would likely be
unconstitutional.\77\ The 2nd Circuit came to the better-
reasoned conclusion that ``when a court issues a stay pending
its review of an administrative removal order, the alien
continues to be detained under section 236[c] until the court
renders its decision.''\78\
---------------------------------------------------------------------------
\76\See 535 F.3d 942, 948 (9th Cir. 2008). Section 236(a) provides
that ``an alien may be arrested and detained pending a decision on
whether the alien is to be removed from the United States.'' The court
ruled that section 236(c) only applies ``during removal proceedings.''
\77\See id. at 951.
\78\Wang v. Ashcroft, 320 F.3d 130, 147 (2nd Cir. 2003).
---------------------------------------------------------------------------
The 9th Circuit has extended this type of rationale beyond
the realm of criminal aliens. Aliens are subject to mandatory
detention during the removal period (which begins when an order
of removal becomes administratively final).\79\ However, the
9th Circuit found in Prieto-Romero v. Clark that an alien
``whose removal order is administratively final, but whose
removal has been stayed by a court of appeals pending its
disposition of his petition for review'' is no longer within
the removal period, but subject only to discretionary detention
under section 236(a).\80\ And in Nadarajah v. Gonzales, the
court read the mandatory detention provisions for aliens
applying for admission (found at section 235(b) of the INA) to
be limited to a ``reasonable'' length and only ``while removal
remains reasonably foreseeable.''\81\
---------------------------------------------------------------------------
\79\See sec. 241(a)(1)-(2) of the INA.
\80\534 F.3d 1053, 1059 (9th Cir. 2008).
\81\443 F.3d 1069, 1078, 1084 (9th Cir. 2006).
---------------------------------------------------------------------------
However, non-criminal aliens ordered removed who are not
detained abscond just as do criminal aliens. So too do arriving
aliens who are not entitled to be admitted. In fact, by the
mid-1990s, thousands of aliens were arriving at U.S. airports
each year without valid documents, often making meritless
asylum claims, knowing that they would be released into the
community pending asylum hearings before Immigration Judges
because of a lack of detention space.\82\ Congress responded by
creating the expedited removal process.
---------------------------------------------------------------------------
\82\See H.R. Rep. No. 104-469, pt. 1, at 157-58 (1995). Even
arriving aliens who show a ``credible fear of persecution'' may abscond
if later denied asylum. The grant rate for credible fear determinations
has become so high--87% percent in fiscal year 2011 (through March
2011)--that the credible fear requirement is no longer deterring
arriving aliens from making fraudulent asylum claims at ports of entry.
Information provided by U.S. Citizenship and Immigration Services. What
happens when DHS doesn't detain asylum seekers making fraudulent
claims? The lesson from the past is clear--nondetained asylum seekers
who are later denied asylum simply abscond. The Inspector General of
the Department of Justice issued a report that looked at the INS's
success in removing nondetained asylum seekers who were denied asylum.
The INS was only able to remove three percent of these nondetained
aliens. See Office of the Inspector General, U.S. Department of
Justice, The Immigration and Naturalization Service's Removal of Aliens
Issued Final Orders 16 (Feb. 2003). Similarly, a DHS report found that
of those aliens who filed for asylum with an asylum officer in 2000,
were never detained and were then denied asylum and ordered removed,
less than one percent were removed by April 2003 (41 out of 9,772); of
those claiming a credible fear of persecution at ports of entry who
were never detained and were then denied asylum and ordered removed,
only 19% were removed (15 out of 80). See ICE, U.S. Department of
Homeland Security, Detained Asylum Seekers: Fiscal Year 2000 tables
10a, 10b (undated).
---------------------------------------------------------------------------
The Keep Our Communities Safe Act
The Keep Our Communities Safe Act rejects the expansion of
the supposed rationale of Zadvydas and Clark to non post-
removal order cases. The bill provides that detention under
sections 235 and 236 of the INA is ``without limitation, until
the alien is subject to a final order of removal''--without any
statutory limitation on duration. Duration will, of course, be
limited in practice because immigration judges, the Board of
Immigration Appeals, and Federal circuit courts will eventually
reach decisions on matters before them. Aliens might also be
less tempted to engage in dilatory tactics if they realize that
such tactics won't get them released from detention. Finally,
aliens will usually continue to hold the keys to their own
detention--if they accept their removal they will be
expeditiously freed from detention.
Additionally, the bill provides, contra Casas-Castrillon v.
Department of Homeland Security, that the removal period
continues during the period after a Federal court orders a stay
of an alien's removal. However, detention during this period is
at the discretion of DHS.
It should be noted that in cases of detention pursuant to
sections 235 and 236 where detention is discretionary (such as
with section 236(a)) and not mandatory, aliens will continue to
have access to bond hearings by immigration judges.

III. APPLICABILITY OF SECTION 236(C) WHEN DHS DETENTION DOES NOT
IMMEDIATELY FOLLOW UPON RELEASE FROM CUSTODY

Section 236(c) provides that the government ``shall take
into custody'' individuals who are inadmissible or deportable
under various criminal and terrorist grounds ``when the alien
is released, without regard to whether the alien is released on
parole, supervised release, or probation, and without regard to
whether the alien may be arrested or imprisoned again for the
same offense.''
Some Federal courts have interpreted section 236(c)'s
mandatory detention not to apply to criminal aliens whom DHS
does not detain immediately after they were released from
incarceration upon the conclusion of their criminal sentences.
For instance, a Federal district court in Virginia ruled that
section 236(c) ``does not apply to an alien . . . who has been
taken into immigration custody well over a month after his
release from state custody.''\83\
---------------------------------------------------------------------------
\83\Waffi v. Loiselle, 527 F. Supp. 2d 480, 488 (E.D. Va. 2007).
See also, e.g., Scarlett v. DHS, 632 F. Supp. 2d 214, 219 (W.D.N.Y.
2009).
---------------------------------------------------------------------------
And some Federal courts have interpreted section 236(c) to
not apply to criminal aliens whom DHS detains following
criminal incarceration for crimes other than the crimes that
make them subject to mandatory detention under section 236(c).
For instance, the 1st Circuit asked the question of ``whether
[section 236(c)] applies only when an alien is released from a
criminal custody the basis for which is one of the offenses
[subjecting an alien to mandatory detention under section
236(c)] or, alternately, whether it applies whenever an alien,
previously convicted of [such] an offense . . . is released
from any criminal custody regardless of the reason for that
detention.''\84\ The court ruled that section 236(c) applies
only in the former case.\85\
---------------------------------------------------------------------------
\84\Saysana v. Gillen, 590 F.3d 7, 8 (1st Cir. 2009) (emphasis in
original).
\85\See id. at 28. See also, e.g., Louisaire v. Muller, 758 F.
Supp. 2d 229, 236 (S.D.N.Y. 2010).
---------------------------------------------------------------------------
Putting aside the proper reading of section 236(c), these
decisions make little policy sense. As Justice Kennedy has
stated, ``[a]ny suggestion that aliens who have completed
prison terms no longer present a danger simply does not accord
with the reality that a significant risk may still exist. . .
.''\86\ The dual purposes for the mandatory detention of
criminal aliens are to protect the American public and to
ensure that removal orders can be effectuated. It makes no
difference for purposes of achieving these goals whether a
criminal alien was placed in DHS detention immediately after
being released from criminal incarceration or years after being
released from criminal incarceration; it makes no difference
whether a criminal alien was placed in DHS detention after
incarceration for the crime making them removable or after
incarceration for another crime; in fact, it makes no
difference if they were ever incarcerated.
---------------------------------------------------------------------------
\86\Zadvydas, 533 U.S. at 714 (Kennedy, J., dissenting).
---------------------------------------------------------------------------
The Keep Our Communities Safe Act
The bill makes clear that aliens are subject to mandatory
detention under section 236(c) regardless of whether there has
been an intervening period since they were released from
criminal custody or whether they were last released from
incarceration for a crime other than the crime that makes them
subject to mandatory detention. In both cases, the aliens are
still subject to mandatory detention under section 236(c). The
bill provides that a criminal alien is subject to section
236(c) at ``any time after the alien is released, without
regard to whether an alien is released related to any activity,
offense, or conviction [making them subject to mandatory
detention under section 236(c)]. . . .''

Hearings

The Committee's Subcommittee on Immigration Policy and
Enforcement held one day of hearings on H.R. 1932 on May 24,
2011. Testimony was received from Gary Mead, Executive
Associate Director for Enforcement and Removal Operations, ICE,
Department of Homeland Security; Thomas Dupree, Partner, Gibson
Dunn & Crutcher; Police Chief Douglas Baker, Tampa, Florida
Police Department; and Ahilan Arulanantham, Deputy Legal
Director, American Civil Liberties Union of Southern
California.

Committee Consideration

On July 14, 2011, the Committee met in open session and
ordered the bill H.R. 1932 favorably reported with an
amendment, by a roll call vote of 17 to 14, a quorum being
present.

Committee Votes

In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 1932.
1. An amendment by Rep. Chu failed by a vote of 13-18. The
amendment would have stricken the provisions of the bill that
amend sections 235 and 236 of the INA as to the detention of
arriving aliens and aliens pending and during removal
proceedings.

ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams.......................................................
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 13 18
----------------------------------------------------------------------------------------------------------------

2. An amendment by Rep. Jackson Lee failed by a vote of 13-
21. The amendment would have stricken the provisions of the
bill that provide for detention of aliens after the removal
period and would have substituted a civil commitment process
for aliens who pose a special danger to others.

ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley.....................................................
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 13 21
----------------------------------------------------------------------------------------------------------------

3. An amendment by Rep. Conyers failed by a vote of 12-17.
The amendment would have stricken the provisions of the bill
that amend section 235 of the INA as to the detention of
arriving aliens.

ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman......................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch......................................................
Ms. Sanchez..................................................... X
Ms. Wasserman...................................................
-----------------------------------------------
Total....................................................... 12 17
----------------------------------------------------------------------------------------------------------------

4. An amendment by Rep. Chu failed by a vote of 13-16. The
amendment would have stricken provisions of the bill that amend
section 235 of the INA as to the detention of arriving aliens
and would have substituted alternate provisions.

ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams.......................................................
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 13 16
----------------------------------------------------------------------------------------------------------------

5. An amendment by Ms. Jackson Lee failed by a vote of 14-
15. The amendment would have stricken a provision of the bill
that requires the detention by DHS of certain removable
criminal aliens at any time after they are released from
serving their criminal sentences.

ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble.......................................................
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 14 15
----------------------------------------------------------------------------------------------------------------

6. Motion to report H.R. 1932 favorably, as amended. Passed
17-14.

ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman............................................. X
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Chabot...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe.........................................................
Mr. Chaffetz.................................................... X
Mr. Griffin..................................................... X
Mr. Marino...................................................... X
Mr. Gowdy....................................................... X
Mr. Ross........................................................ X
Ms. Adams....................................................... X
Mr. Quayle...................................................... X
Mr. Conyers, Jr., Ranking Member................................ X
Mr. Berman...................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Ms. Chu......................................................... X
Mr. Deutch...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz...........................................
-----------------------------------------------
Total....................................................... 17 14
----------------------------------------------------------------------------------------------------------------

Committee Oversight Findings

In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1932, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, August 8, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1932, the ``Keep
Our Communities Safe Act of 2011.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.

Enclosure

cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 1932--Keep Our Communities Safe Act of 2011.
CBO estimates that implementing H.R. 1932 would have no
significant costs to the Federal Government. Enacting H.R. 1932
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply. H.R. 1932 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would not affect the budgets
of State, local, or tribal governments.
H.R. 1932 would clarify numerous provisions in current laws
and regulations relating to the detention of aliens who are
ordered removed from the United States. The bill also would
clarify many procedural issues in the appeals process that are
available to aliens who contest their detention or removal. In
addition, H.R 1932 would authorize the Department of Homeland
Security (DHS) to detain such aliens for longer than 6 months
under certain circumstances.
According to DHS, most aliens who receive a final order of
removal are removed from the United States well within 6
months. In many cases under current law, DHS detains aliens
only as long as necessary to determine whether the individual,
upon removal, would be accepted by his home country or by
another country. If such acceptance is deemed unlikely, then
generally the detainee is released. CBO anticipates that this
policy will continue under the provisions of H.R. 1932 because
the legislation would not require DHS to hold aliens for a
certain length of time. Thus, we do not expect a large increase
in the number of detainees who are held for long periods of
time, and we estimate that H.R. 1932 would not significantly
increase DHS detention costs.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.

Performance Goals and Objectives

The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1932 allows for the continued detention of dangerous aliens who
cannot be removed and strengthens the Department of Homeland
Security's ability to detain criminal aliens in removal
proceedings.

Constitutional Authority Statement

The Committee finds the authority for this legislation in
article I, section 8, clause 4 of the Constitution.

Advisory on Earmarks

In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1932 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

Section-by-Section Analysis

Section 1:
Short Title
Section 2(a)(1):
Consistent with the formation of the Department of Homeland
Security, this provision clarifies that DHS has the power to
detain, release and remove an alien ordered removed.
Section 2(a)(2):
Current law provides that an alien must generally be
removed within 90 days of being ordered removed (``the removal
period''). This provision clarifies that in cases where the
alien is confined other than by DHS at the time the order
becomes final, the removal period begins on the date the alien
is released and placed into DHS custody.
Section 2(a)(3):
This provision provides that the removal period shall be
extended beyond 90 days if the alien does not comply with
efforts to remove them or an immigration judge, the BIA, or a
court issues a stay of the alien's final removal order, or
custody of the alien is transferred to another agency.
The removal period begins again when the alien complies
with removal efforts, the stay is no longer in effect or the
alien is returned to DHS custody.
Section 2(a)(4):
This provision allows DHS to continue supervision of an
alien who is not detained under paragraph 6 (below). It expands
supervision to include reasonable restrictions to prevent
aliens from absconding, protect the community, and enforce
immigration laws.
Section 2(a)(5):
This provision clarifies that DHS has the discretion to
order the removal of an alien before the term of imprisonment
has ended pursuant to the Public Health Service Act and in some
circumstances when the alien is a nonviolent criminal offender.
Section 2(a)(6):
This provision provides a review process for DHS to
determine whether an alien who is not subject to mandatory
detention and has cooperated in removal efforts should be
released or detained beyond the removal period. The review
process requires that DHS consider any available evidence,
including that submitted by the alien and state or Federal
officials.
The provision allows DHS the discretion to detain an alien
for 90 days beyond the removal period. It further grants DHS
the discretion to authorize detention beyond this additional 90
day period if 1) there is a significant likelihood that the
alien will be removed in the reasonably foreseeable future or
would be removed in the reasonably foreseeable future but for
the alien's failure to cooperate, 2) DHS certifies that the
alien has a highly contagious disease that would be a threat to
public safety, 3) DHS certifies that, based on the Secretary of
State's recommendation, release of the alien is likely to have
serious adverse foreign policy consequences, or 4) DHS
certifies that, based on information available, there is reason
to believe that release of the alien would threaten national
security.
DHS may also authorize detention beyond the 90 days after
certifying that the alien will threaten the safety of the
community or any person and conditions of release cannot
reasonably ensure their safety, and either 1) the alien has
been convicted of an aggravated felony or other crimes
specified by DHS (or attempts or conspiracies to commit such
crimes if the term of imprisonment for the attempt or
conspiracy is five years or more), or 2) the alien has
committed a crime of violence and because of a mental condition
or personality disorder and associated behavior is likely to
engage in acts of violence in the future.
The provision provides also that DHS may detain the alien
beyond the 90 day period following the removal period pending a
certification decision as long as DHS initiates the review
process no later than 30 days after the removal period expires.
DHS must renew the certification under this section every
six months if it wants to continue detention. It must provide
an opportunity for the alien to request and provide evidence to
support reconsideration of the certification. DHS cannot
delegate the authority to issue a certification below the level
of the Assistant Secretary for ICE.
DHS may request that the Attorney General conduct a hearing
to determine whether, due to a mental condition, an alien
convicted of a crime of violence is likely to engage in acts of
violence in the future.
If a Federal court or the Board of Immigration Appeals
releases an alien from detention or if an immigration judge
orders a stay of removal, DHS may impose conditions on the
alien's release.
DHS has the discretion to re-detain an alien if removal
becomes likely in the reasonably foreseeable future, the alien
does not comply with conditions or release, or if DHS
determines that the alien can be detained beyond the removal
pursuant to this section.
Section 2(a)(7):
This provision provides that judicial review of challenges
to detention pursuant to this section is available exclusively
in habeas corpus proceedings in the United States District
Court for the District of Colombia. It requires that an alien
first exhaust administrative remedies before pursuing a habeas
corpus claim.
Section 2(b)(1):
This is a clerical amendment to recognize the creation of
the Department of Homeland Security.
Section 2(b)(2):
This provision clarifies that there is no limit to the
length of time an alien may be held in custody pursuant to
section 235 (regarding arriving aliens), and such detention has
no affect on the removal period under section 241. However,
aliens detained pursuant to the non-mandatory detention
provisions of section 235 can apply to an Immigration Judge for
release from custody (bond hearing).
It also provides that judicial review of challenges to
detention pursuant to section 235 is available exclusively in
habeas corpus proceedings in the United States District Court
for the District of Colombia. It requires that the alien first
exhaust administrative remedies before pursuing a habeas corpus
claim.
Section 2(b)(3):
This provision provides that judicial review of challenges
to detention under section 236 is available exclusively in
habeas corpus proceedings in the United States District Court
for the District of Colombia. It requires that an alien first
exhaust administrative remedies before pursuing a habeas corpus
claim.
Section 2(b)(4):
The provision clarifies that there is no limit to the
length of time an alien maybe held in custody pursuant to
section 236 and such detention has no affect on the removal
period under section 241. However, aliens detained pursuant to
the non-mandatory detention provisions of section 236 can apply
to an immigration judge for release from custody (bond
hearing).
Section 2(b)(5):
This provision clarifies that a criminal alien is subject
to mandatory detention under section 236(c) and shall be taken
into custody by DHS even if they had been released at some
prior time from serving a criminal sentence, were released from
serving a sentence for a crime other than the crime that
subjects them to mandatory detention, or never served a
criminal sentence.
Section 2(b)(6):
This provision limits the Executive Office for Immigration
Review's review of DHS's custody determination under section
236 to whether the alien may be detained, released with no
bond, or released on bond of at least $1,500.
The Executive Office for Immigration Review's review of
DHS's custody determinations for aliens in certain classes is
limited to whether the aliens were properly included in such
categories, including aliens in exclusion proceedings, arriving
aliens in removal proceedings, paroled aliens, aliens removable
on security and related grounds, or certain criminal aliens.
Section 2(b)(7):
This provision clarifies that DHS may release an alien
pending final order of removal only on bond of at least $1500
or recognizance. Current law allows such aliens to be released
on bond of at least $1500 as well as on conditional parole.
Section 2(c):
This provision provides that if any section of the bill is
held to be invalid, it may be severed from the bill and will
not affect the remainder of the bill.
Section 2(d)(1):
This provision provides that the amendments made by section
2(a) of the bill shall take effect on the date of the enactment
of the bill. It clarifies that section 241 of the INA as
amended applies to all aliens subject to a final order issued
before, on, or after the date of enactment and to acts and
conditions occurring or existing before, on, or after the date
of enactment.
Section 2(d)(2):
This provision provides that the amendments made by section
2(b) of the bill shall take effect on the date of the enactment
of the bill and sections 235 and 236 as amended shall apply to
any alien in detention under provisions of those sections on or
after the date of enactment.
Section 3:
This section provides the sense of Congress that the bill
should ensure that constitutional rights are upheld and
protected and that it is the intention of Congress to uphold
the constitutional principles of due process and that due
process of law is a right afforded to all persons in the United
States. Of course, as the 10th Circuit has held, ``the nature
of the protection an alien is due `may vary depending upon
status and circumstance.' . . . `The fact that all persons,
aliens and citizens alike, are protected by the Due Process
Clause does not lead to the further conclusion that all aliens
are entitled to enjoy all the advantages of citizenship. . .
.'''\87\
---------------------------------------------------------------------------
\87\Hernandez-Carrera, 547 F.3d at 1254 (quoting Zadvydas, 533 U.S.
at 694 and Mathews v. Diaz, 426 U.S. 67, 78 (1976)).
---------------------------------------------------------------------------

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):

IMMIGRATION AND NATIONALITY ACT

* * * * * * *
TITLE II--IMMIGRATION

* * * * * * *

Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal

* * * * * * *

INSPECTION BY IMMIGRATION OFFICERS; EXPEDITED REMOVAL OF INADMISSIBLE
ARRIVING ALIENS; REFERRAL FOR HEARING

Sec. 235. (a) Inspection.--
(1) * * *

* * * * * * *

(4) Withdrawal of application for admission.--An
alien applying for admission may, in the discretion of
the [Attorney General] Secretary of Homeland Security
and at any time, be permitted to withdraw the
application for admission and depart immediately from
the United States.

* * * * * * *

(b) Inspection of Applicants for Admission.--
(1) Inspection of aliens arriving in the united
states and certain other aliens who have not been
admitted or paroled.--
(A) Screening.--
(i) * * *

* * * * * * *

(iii) Application to certain other
aliens.--
(I) In general.--The
[Attorney General] Secretary of
Homeland Security may apply
clauses (i) and (ii) of this
subparagraph to any or all
aliens described in subclause
(II) as designated by the
[Attorney General] Secretary of
Homeland Security. Such
designation shall be in the
sole and unreviewable
discretion of the [Attorney
General] Secretary of Homeland
Security and may be modified at
any time.

* * * * * * *

(B) Asylum interviews.--
(i) Conduct by asylum officers.--An
asylum officer shall conduct interviews
of aliens referred under subparagraph
(A)(ii), either at a port of entry or
at such other place designated by the
[Attorney General] Secretary of
Homeland Security.

* * * * * * *

(iii) Removal without further
review if no credible fear of
persecution.--
(I) * * *

* * * * * * *

(III) Review of
determination.--The [Attorney
General] Secretary of Homeland
Security shall provide by
regulation and upon the alien's
request for prompt review by an
immigration judge of a
determination under subclause
(I) that the alien does not
have a credible fear of
persecution. Such review shall
include an opportunity for the
alien to be heard and
questioned by the immigration
judge, either in person or by
telephonic or video connection.
Review shall be concluded as
expeditiously as possible, to
the maximum extent practicable
within 24 hours, but in no case
later than 7 days after the
date of the determination under
subclause (I).

* * * * * * *

(iv) Information about
interviews.--The [Attorney General]
Secretary of Homeland Security shall
provide information concerning the
asylum interview described in this
subparagraph to aliens who may be
eligible. An alien who is eligible for
such interview may consult with a
person or persons of the alien's
choosing prior to the interview or any
review thereof, according to
regulations prescribed by the [Attorney
General] Secretary of Homeland
Security. Such consultation shall be at
no expense to the Government and shall
not unreasonably delay the process.

* * * * * * *

(C) Limitation on administrative review.--
Except as provided in subparagraph
(B)(iii)(III), a removal order entered in
accordance with subparagraph (A)(i) or
(B)(iii)(I) is not subject to administrative
appeal, except that the [Attorney General]
Secretary of Homeland Security shall provide by
regulation for prompt review of such an order
under subparagraph (A)(i) against an alien who
claims under oath, or as permitted under
penalty of perjury under section 1746 of title
28, United States Code, after having been
warned of the penalties for falsely making such
claim under such conditions, to have been
lawfully admitted for permanent residence, to
have been admitted as a refugee under section
207, or to have been granted asylum under
section 208.

* * * * * * *

(2) Inspection of other aliens.--
(A) * * *

* * * * * * *

(C) Treatment of aliens arriving from
contiguous territory.--In the case of an alien
described in subparagraph (A) who is arriving
on land (whether or not at a designated port of
arrival) from a foreign territory contiguous to
the United States, the [Attorney General]
Secretary of Homeland Security may return the
alien to that territory pending a proceeding
under section 240.

* * * * * * *

(c) Removal of Aliens Inadmissible on Security and Related
Grounds.--
(1) Removal without further hearing.--If an
immigration officer or an immigration judge suspects
that an arriving alien may be inadmissible under
subparagraph (A) (other than clause (ii)), (B), or (C)
of section 212(a)(3), the officer or judge shall--
(A) * * *
(B) report the order of removal to the
[Attorney General] Secretary of Homeland
Security; and
(C) not conduct any further inquiry or
hearing until ordered by the [Attorney General]
Secretary of Homeland Security.
(2) Review of order.--(A) The [Attorney General]
Secretary of Homeland Security shall review orders
issued under paragraph (1).
(B) If the [Attorney General] Secretary of Homeland
Security--
(i) * * *

* * * * * * *

the [Attorney General] Secretary of Homeland Security
may order the alien removed without further inquiry or
hearing by an immigration judge.
(C) If the [Attorney General] Secretary of Homeland
Security does not order the removal of the alien under
subparagraph (B), the [Attorney General] Secretary of
Homeland Security shall specify the further inquiry or
hearing that shall be conducted in the case.
(3) Submission of statement and information.--The
alien or the alien's representative may submit a
written statement and additional information for
consideration by the [Attorney General] Secretary of
Homeland Security.
(d) Authority Relating to Inspections.--
(1) * * *

* * * * * * *

(3) Administration of oath and consideration of
evidence.--The [Attorney General] Secretary of Homeland
Security and any immigration officer shall have power
to administer oaths and to take and consider evidence
of or from any person touching the privilege of any
alien or person he believes or suspects to be an alien
to enter, reenter, transit through, or reside in the
United States or concerning any matter which is
material and relevant to the enforcement of this Act
and the administration of the Service.
(4) Subpoena authority.--(A) The [Attorney General]
Secretary of Homeland Security and any immigration
officer shall have power to require by subpoena the
attendance and testimony of witnesses before
immigration officers and the production of books,
papers, and documents relating to the privilege of any
person to enter, reenter, reside in, or pass through
the United States or concerning any matter which is
material and relevant to the enforcement of this Act
and the administration of the Service, and to that end
may invoke the aid of any court of the United States.

* * * * * * *

(e) Length of Detention.--
(1) Notwithstanding any other provision of this
section, an alien may be detained under this section,
without limitation, until the alien is subject to an
final order of removal.
(2) The length of detention under this section
shall not affect any detention under section 241.
(f) Judicial Review.--Without regard to the place of
confinement, judicial review of any action or decision made
pursuant to subsection (e) shall be available exclusively in a
habeas corpus proceeding instituted in the United States
District Court for the District of Columbia and only if the
alien has exhausted all administrative remedies (statutory and
nonstatutory) available to the alien as of right.

APPREHENSION AND DETENTION OF ALIENS

Sec. 236. (a) Arrest, Detention, and Release.--On a warrant
issued by the [Attorney General] Secretary of Homeland
Security, an alien may be arrested and detained pending a
decision on whether the alien is to be removed from the United
States. Except as provided in subsection (c) and pending such
decision, the Secretary of Homeland Security or the Attorney
General--
(1) * * *
(2) may release the alien on--
(A) bond of at least $1,500 with security
approved by, and containing conditions
prescribed by, the [Attorney General] Secretary
of Homeland Security; or
(B) [conditional parole] recognizance; but

* * * * * * *

(b) Revocation of Bond or Parole.--The [Attorney General]
Secretary of Homeland Security at any time may revoke a bond or
[parole] recognizance authorized under subsection (a), rearrest
the alien under the original warrant, and detain the alien.
(c) Detention of Criminal Aliens.--
(1) Custody.--The [Attorney General] Secretary of
Homeland Security shall take into custody any alien
who--
(A) * * *

* * * * * * *

[when the alien is released, without regard to whether
the alien is released on parole, supervised release, or
probation, and without regard to whether the alien may
be arrested or imprisoned again for the same offense.]
any time after the alien is released, without regard to
whether an alien is released related to any activity,
offense, or conviction described in this paragraph; to
whether the alien is released on parole, supervised
release, or probation; or to whether the alien may be
arrested or imprisoned again for the same offense. If
the activity described in this paragraph does not
result in the alien being taken into custody by any
person other than the Secretary, then when the alien is
brought to the attention of the Secretary or when the
Secretary determines it is practical to take such alien
into custody, the Secretary shall take such alien into
custody.
(2) Release.--The [Attorney General] Secretary of
Homeland Security may release an alien described in
paragraph (1) only if the [Attorney General] Secretary
of Homeland Security decides pursuant to section 3521
of title 18, United States Code, that release of the
alien from custody is necessary to provide protection
to a witness, a potential witness, a person cooperating
with an investigation into major criminal activity, or
an immediate family member or close associate of a
witness, potential witness, or person cooperating with
such an investigation, and the alien satisfies the
[Attorney General] Secretary of Homeland Security that
the alien will not pose a danger to the safety of other
persons or of property and is likely to appear for any
scheduled proceeding. A decision relating to such
release shall take place in accordance with a procedure
that considers the severity of the offense committed by
the alien.
(d) Identification of Criminal Aliens.--(1) The [Attorney
General] Secretary of Homeland Security shall devise and
implement a system--
(A) * * *

* * * * * * *

(e) Judicial Review.--The [Attorney General's] Secretary of
Homeland Security's discretionary judgment regarding the
application of this section shall not be subject to review. No
court may set aside any action or decision by the [Attorney
General] Secretary of Homeland Security under this section
regarding the detention or release of any alien or the grant,
revocation, or denial of bond or parole. Without regard to the
place of confinement, judicial review of any action or decision
made pursuant to subsection (f) shall be available exclusively
in a habeas corpus proceeding instituted in the United States
District Court for the District of Columbia and only if the
alien has exhausted all administrative remedies (statutory and
nonstatutory) available to the alien as of right.
(f) Length of Detention.--
(1) Notwithstanding any other provision of this
section, an alien may be detained under this section
for any period, without limitation, until the alien is
subject to a final order of removal.
(2) The length of detention under this section
shall not affect detention under section 241 of this
Act.
(g) Administrative Review.--
(1) The Attorney General's review of the
Secretary's custody determinations under section 236(a)
shall be limited to whether the alien may be detained,
released on bond (of at least $1,500 with security
approved by the Secretary), or released with no bond.
(2) The Attorney General's review of the
Secretary's custody determinations for the following
classes of aliens:
(A) Aliens in exclusion proceedings.
(B) Arriving aliens in removal proceedings,
including aliens paroled after arrival pursuant
to section 212(d)(5).
(C) Aliens described in sections 212(a)(3)
and 237(a)(4).
(D) Aliens described in section 236(c).
(E) Aliens in deportation proceedings
subject to section 242(a)(2) of the Act (as in
effect prior to April 1, 1997, and as amended
by section 440(c) of Public Law 104-132); is
limited to a determination of whether the alien
is properly included in such category.

* * * * * * *

DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED

Sec. 241. (a) Detention, Release, and Removal of Aliens
Ordered Removed.--
(1) Removal period.--
(A) In general.--Except as otherwise
provided in this section, when an alien is
ordered removed, the [Attorney General]
Secretary of Homeland Security shall remove the
alien from the United States within a period of
90 days (in this section referred to as the
``removal period'').
[(B) Beginning of period.--The removal
period begins on the latest of the following:
[(i) The date the order of removal
becomes administratively final.
[(ii) If the removal order is
judicially reviewed and if a court
orders a stay of the removal of the
alien, the date of the court's final
order.
[(iii) If the alien is detained or
confined (except under an immigration
process), the date the alien is
released from detention or confinement.
[(C) Suspension of period.--The removal
period shall be extended beyond a period of 90
days and the alien may remain in detention
during such extended period if the alien fails
or refuses to make timely application in good
faith for travel or other documents necessary
to the alien's departure or conspires or acts
to prevent the alien's removal subject to an
order of removal.]
(B) Beginning of period.--The removal
period begins on the latest of the following:
(i) The date the order of removal
becomes administratively final.
(ii) If the alien is not in the
custody of the Secretary on the date
the order of removal becomes
administratively final, the date the
alien is taken into such custody.
(iii) If the alien is detained or
confined (except under an immigration
process) on the date the order of
removal becomes administratively final,
the date the alien is taken into the
custody of the Secretary, after the
alien is released from such detention
or confinement.
(C) Suspension of period.--
(i) Extension.--The removal period
shall be extended beyond a period of 90
days and the alien may remain in
detention during such extended period
if--
(I) the alien fails or
refuses to make all reasonable
efforts to comply with the
removal order, or to fully
cooperate with the Secretary's
efforts to establish the
alien's identity and carry out
the removal order, including
making timely application in
good faith for travel or other
documents necessary to the
alien's departure or conspires
or acts to prevent the alien's
removal that is subject to an
order of removal;
(II) a court, the Board of
Immigration Appeals, or an
immigration judge orders a stay
of removal of an alien who is
subject to an administratively
final order of removal; or
(III) the Secretary
transfers custody of the alien
pursuant to law to another
Federal agency or a State or
local government agency in
connection with the official
duties of such agency.
(ii) Renewal.--If the removal
period has been extended under clause
(C)(i), a new removal period shall be
deemed to have begun on the date--
(I) the alien makes all
reasonable efforts to comply
with the removal order, or to
fully cooperate with the
Secretary's efforts to
establish the alien's identity
and carry out the removal
order;
(II) the stay of removal is
no longer in effect; or
(III) the alien is returned
to the custody of the
Secretary.
(2) Detention.--During the removal period, the
[Attorney General] Secretary of Homeland Security shall
detain the alien. Under no circumstance during the
removal period shall the [Attorney General] Secretary
of Homeland Security release an alien who has been
found inadmissible under section 212(a)(2) or
212(a)(3)(B) or deportable under section 237(a)(2) or
237(a)(4)(B).
(3) Supervision after 90-day period.--If the alien
does not leave or is not removed within the removal
period or is not detained pursuant to paragraph (6) of
this subsection, the alien, pending removal, shall be
subject to supervision under regulations prescribed by
the [Attorney General] Secretary of Homeland Security.
The regulations shall include provisions requiring the
alien--
(A) * * *

* * * * * * *

(C) to give information under oath about
the alien's nationality, circumstances, habits,
associations, and activities, and other
information the [Attorney General] Secretary of
Homeland Security considers appropriate; and
[(D) to obey reasonable written
restrictions on the alien's conduct or
activities that the Attorney General prescribes
for the alien.]
(D) to obey reasonable restrictions on the
alien's conduct or activities that the
Secretary prescribes for the alien, in order to
prevent the alien from absconding, for the
protection of the community, or for other
purposes related to the enforcement of the
immigration laws.
(4) Aliens imprisoned, arrested, or on parole,
supervised release, or probation.--
(A) In general.--Except as provided in
section 343(a) of the Public Health Service Act
(42 U.S.C. 259(a)) and [paragraph (2)]
subparagraph (B), the [Attorney General]
Secretary of Homeland Security may not remove
an alien who is sentenced to imprisonment until
the alien is released from imprisonment.
Parole, supervised release, probation, or
possibility of arrest or further imprisonment
is not a reason to defer removal.
(B) Exception for removal of nonviolent
offenders prior to completion of sentence of
imprisonment.--The [Attorney General] Secretary
of Homeland Security is authorized to remove an
alien in accordance with applicable procedures
under this Act before the alien has completed a
sentence of imprisonment--
(i) * * *
(ii) in the case of an alien in the
custody of a State (or a political
subdivision of a State), if the chief
State official exercising authority
with respect to the incarceration of
the alien determines that (I) the alien
is confined pursuant to a final
conviction for a nonviolent offense
(other than an offense described in
section 101(a)(43)(C) or (E)), (II) the
removal is appropriate and in the best
interest of the State, and (III)
submits a written request to the
[Attorney General] Secretary of
Homeland Security that such alien be so
removed.

* * * * * * *

(5) Reinstatement of removal orders against aliens
illegally reentering.--If the [Attorney General]
Secretary of Homeland Security finds that an alien has
reentered the United States illegally after having been
removed or having departed voluntarily, under an order
of removal, the prior order of removal is reinstated
from its original date and is not subject to being
reopened or reviewed, the alien is not eligible and may
not apply for any relief under this Act, and the alien
shall be removed under the prior order at any time
after the reentry.
[(6) Inadmissible or criminal aliens.--An alien
ordered removed who is inadmissible under section 212,
removable under section 237(a)(1)(C), 237(a)(2), or
237(a)(4) or who has been determined by the Attorney
General to be a risk to the community or unlikely to
comply with the order of removal, may be detained
beyond the removal period and, if released, shall be
subject to the terms of supervision in paragraph (3).]
(6) Additional rules for detention or release of
certain aliens.--
(A) Detention review process for
cooperative aliens established.--For an alien
who is not otherwise subject to mandatory
detention, who has made all reasonable efforts
to comply with a removal order and to cooperate
fully with the Secretary of Homeland Security's
efforts to establish the alien's identity and
carry out the removal order, including making
timely application in good faith for travel or
other documents necessary to the alien's
departure, and who has not conspired or acted
to prevent removal, the Secretary shall
establish an administrative review process to
determine whether the alien should be detained
or released on conditions. The Secretary shall
make a determination whether to release an
alien after the removal period in accordance
with subparagraph (B). The determination shall
include consideration of any evidence submitted
by the alien, and may include consideration of
any other evidence, including any information
or assistance provided by the Secretary of
State or other Federal official and any other
information available to the Secretary of
Homeland Security pertaining to the ability to
remove the alien.
(B) Authority to detain beyond removal
period.--
(i) In general.--The Secretary of
Homeland Security, in the exercise of
the Secretary's discretion, may
continue to detain an alien for 90 days
beyond the removal period (including
any extension of the removal period as
provided in paragraph (1)(C)).
(ii) Specific circumstances.--The
Secretary of Homeland Security, in the
exercise of the Secretary's discretion,
may continue to detain an alien beyond
the 90 days authorized in clause (i)--
(I) until the alien is
removed, if the Secretary
determines that there is a
significant likelihood that the
alien--
(aa) will be
removed in the
reasonably foreseeable
future; or
(bb) would be
removed in the
reasonably foreseeable
future, or would have
been removed, but for
the alien's failure or
refusal to make all
reasonable efforts to
comply with the removal
order, or to cooperate
fully with the
Secretary's efforts to
establish the alien's
identity and carry out
the removal order,
including making timely
application in good
faith for travel or
other documents
necessary to the
alien's departure, or
conspires or acts to
prevent removal;
(II) until the alien is
removed, if the Secretary of
Homeland Security certifies in
writing--
(aa) in
consultation with the
Secretary of Health and
Human Services, that
the alien has a highly
contagious disease that
poses a threat to
public safety;
(bb) after receipt
of a written
recommendation from the
Secretary of State,
that release of the
alien is likely to have
serious adverse foreign
policy consequences for
the United States;
(cc) based on
information available
to the Secretary of
Homeland Security
(including classified,
sensitive, or national
security information,
and without regard to
the grounds upon which
the alien was ordered
removed), that there is
reason to believe that
the release of the
alien would threaten
the national security
of the United States;
or
(dd) that the
release of the alien
will threaten the
safety of the community
or any person,
conditions of release
cannot reasonably be
expected to ensure the
safety of the community
or any person, and
either (AA) the alien
has been convicted of
one or more aggravated
felonies (as defined in
section 101(a)(43)(A))
or of one or more
crimes identified by
the Secretary of
Homeland Security by
regulation, or of one
or more attempts or
conspiracies to commit
any such aggravated
felonies or such
identified crimes, if
the aggregate term of
imprisonment for such
attempts or
conspiracies is at
least 5 years; or (BB)
the alien has committed
one or more crimes of
violence (as defined in
section 16 of title 18,
United States Code, but
not including a purely
political offense) and,
because of a mental
condition or
personality disorder
and behavior associated
with that condition or
disorder, the alien is
likely to engage in
acts of violence in the
future; or
(ee) that the
release of the alien
will threaten the
safety of the community
or any person,
conditions of release
cannot reasonably be
expected to ensure the
safety of the community
or any person, and the
alien has been
convicted of at least
one aggravated felony
(as defined in section
101(a)(43)); or
(III) pending a
certification under subclause
(II), so long as the Secretary
of Homeland Security has
initiated the administrative
review process not later than
30 days after the expiration of
the removal period (including
any extension of the removal
period, as provided in
paragraph (1)(C)).
(C) Renewal and delegation of
certification.--
(i) Renewal.--The Secretary of
Homeland Security may renew a
certification under subparagraph
(B)(ii)(II) every 6 months, after
providing an opportunity for the alien
to request reconsideration of the
certification and to submit documents
or other evidence in support of that
request. If the Secretary does not
renew a certification, the Secretary
may not continue to detain the alien
under subparagraph (B)(ii)(II).
(ii) Delegation.--Notwithstanding
section 103, the Secretary of Homeland
Security may not delegate the authority
to make or renew a certification
described in item (bb), (cc), or (ee)
of subparagraph (B)(ii)(II) below the
level of the Assistant Secretary for
Immigration and Customs Enforcement.
(iii) Hearing.--The Secretary of
Homeland Security may request that the
Attorney General or the Attorney
General's designee provide for a
hearing to make the determination
described in item (dd)(BB) of
subparagraph (B)(ii)(II).
(D) Release on conditions.--If it is
determined that an alien should be released
from detention by a Federal court, the Board of
Immigration Appeals, or if an immigration judge
orders a stay of removal, the Secretary of
Homeland Security, in the exercise of the
Secretary's discretion, may impose conditions
on release as provided in paragraph (3).
(E) Redetention.--The Secretary of Homeland
Security, in the exercise of the Secretary's
discretion, without any limitations other than
those specified in this section, may again
detain any alien subject to a final removal
order who is released from custody, if removal
becomes likely in the reasonably foreseeable
future, the alien fails to comply with the
conditions of release, or to continue to
satisfy the conditions described in
subparagraph (A), or if, upon reconsideration,
the Secretary determines that the alien can be
detained under subparagraph (B). This section
shall apply to any alien returned to custody
pursuant to this subparagraph, as if the
removal period terminated on the day of the
redetention.
(7) Employment authorization.--No alien ordered
removed shall be eligible to receive authorization to
be employed in the United States unless the [Attorney
General] Secretary of Homeland Security makes a
specific finding that--
(A) * * *

* * * * * * *

(8) Judicial review.--Without regard to the place
of confinement, judicial review of any action or
decision pursuant to this section shall be available
exclusively in habeas corpus proceedings instituted in
the United States District Court for the District of
Columbia, and only if the alien has exhausted all
administrative remedies (statutory and regulatory)
available to the alien as of right.

* * * * * * *

Dissenting Views

I. INTRODUCTION

The Due Process Clause of the Fifth Amendment to the
Constitution states: ``No person . . . shall . . . be deprived
of life, liberty, or property, without due process of law.''\1\
For more than 120 years, the Supreme Court has recognized that
this provision ``applies to all `persons' within the United
States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent.''\2\
---------------------------------------------------------------------------
\1\U.S. Const. amend. V.
\2\Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (citing Yick Wo v.
Hopkins, 118 U.S. 356, 369 (1886)).
---------------------------------------------------------------------------
The Supreme Court, in Zadvydas v. Davis, observed that
``[f]reedom from imprisonment--from government custody,
detention or other forms of physical restraint--lies at the
heart of the liberty that [the Due Process] Clause
protects.''\3\ In discussing the serious constitutional
concerns that would be raised if a statute permitted the
indefinite detention of civil immigration detainees, the Court
in that case noted that it has ``upheld preventive detention
based on dangerousness only when limited to specially dangerous
individuals and subject to strong procedural protections.''\4\
The Court further observed, ``In cases in which preventive
detention is of potentially indefinite duration, we have also
demanded that the dangerousness rationale be accompanied by
some other special circumstance, such as mental illness, that
helps to create the danger.''\5\
---------------------------------------------------------------------------
\3\Id. at 690.
\4\Id. at 691.
\5\Id. at 692.
---------------------------------------------------------------------------
Rather than heed the Supreme Court's constitutional
warnings, H.R. 1932, the ``Keep Our Communities Safe Act of
2011,'' authorizes the indefinite and possibly permanent
detention of civil immigration detainees with little or no
procedural protections. At the Committee's markup of this
legislation, the majority recognized that portions of H.R. 1932
may contravene the Supreme Court's reasoning in Zadvydas, but
cynically welcomed a constitutional challenge to the bill in
light of the justices who now comprise the Court.\6\ Without
question, H.R. 1932 is a direct attack on this decision and on
the long-standing body of constitutional law that supported the
Court's holding. Moreover, although the chief complaint of the
bill's sponsors is that certain countries refuse to accept, or
unreasonably delay the return of, their nationals, the bill
does absolutely nothing to solve that problem.
---------------------------------------------------------------------------
\6\Unofficial Tr. of Markup of H.R. 1932, the Keep Our Communities
Safe Act of 2011, by the H. Comm. on Judiciary, 112th Cong. 73-78
(2011) [hereinafter Markup Transcript], available at http://
judiciary.house.gov/hearings/pdf/
7%2014%2011%20HR%201932%20HR%202480%20HR
%201002.pdf.
---------------------------------------------------------------------------
Additionally, although the bill's sponsor claims that ``the
point of the bill is to detain dangerous and violent illegal
immigrants and those who are a threat to our national
security,''\7\ H.R. 1932 goes much further than that, as
evidenced by the debate at the Committee's markup.\8\ H.R. 1932
clearly authorizes, and in some cases mandates, the prolonged
detention of asylum seekers, lawful permanent residents, aliens
who entered without inspection, and other immigrants who pose
no danger to the public, with no limit in time and few
procedural protections. Authorizing or mandating prolonged
detention of persons who pose no danger to the public is a
waste of scarce resources. Moreover, because our detention
capacity is vast, but finite, expanding detention to such
populations will interfere with our ability to detain persons
who pose an actual danger to the public and will make us less
safe.
---------------------------------------------------------------------------
\7\Id. at 25 (statement of Rep. Lamar Smith (R-TX)).
\8\See Markup Transcript at 107.
---------------------------------------------------------------------------
Finally, the legislation ignores traditional rules
governing habeas corpus petitions and consolidates virtually
all such petitions filed by immigration detainees into the U.S.
District Court for the District of Columbia. According to the
Judicial Conference of the United States, the American Bar
Association, and the Courts, Lawyers and Administration of
Justice Section of the District of Columbia Bar, such a move
will seriously undermine the ability of persons to challenge
the lawfulness of their detention and will bring the already
overburdened D.C. District Court to its knees.\9\
---------------------------------------------------------------------------
\9\Letter from Samuel W. Seymour, President, New York City Bar
Association, to Rep. John Boehner & Rep. Nancy Pelosi (Sept. 20, 2011)
(on file with the H. Comm. on the Judiciary, Democratic Staff); Letter
from Fritz Mulhauser, Co-Chair, & Sean Staples, Co-Chair, Courts,
Lawyers and the Administration of Justice Section, District of Columbia
Bar, to Rep. Lamar Smith et al. (Aug. 3, 2011) [hereinafter DC Bar
Letter] (on file with the H. Comm. on the Judiciary, Democratic Staff);
Letter from Stephen N. Zack, President, American Bar Association, to
Rep. Lamar Smith & Rep. John Conyers, Jr. (June 30, 2011) [hereinafter
ABA Letter] (on file with the H. Comm. on the Judiciary, Democratic
Staff); Letter from James C. Duff, Secretary, Judicial Conference of
the United States, to Rep. Lamar Smith & Rep. John Conyers, Jr. (June
1, 2011) [hereinafter Judicial Conference Letter] (on file with the H.
Comm. on the Judiciary, Democratic Staff). Although Chairman Smith
agreed after the bill's markup to remove all three habeas corpus
consolidation provisions from H.R. 1932 before any further action is
taken on the legislation, the reported version of the bill still
includes the objectionable provisions. As a result, these views will
discuss the reasons such provisions are objectionable and must not
become law.
---------------------------------------------------------------------------
H.R. 1932 is opposed by a broad cross section of
constituencies, including constitutional law scholars,
religious organizations, civil liberties and human rights
groups, and refugee and immigrants right advocates.\10\
---------------------------------------------------------------------------
\10\Michael Tan, Locking Up Immigrants Forever; The ``Keep Our
Communities Safe Act'' (H.R. 1932), Immigration Policy Center (Sept.
2011), available at http://www.immigrationpolicy.org/special-reports/
locking-immigrants-forever-keep-our-communities-safe-act%E2%80%9D-hr-
1932; Letter from Human Rights Watch, et al., to Rep. John Boehner &
Rep. Nancy Pelosi (Sept. 30, 2011) (on file with the H. Comm. on the
Judiciary, Democratic Staff); Keep Our Communities Safe Act of 2011:
Hearing on H.R. 1932 Before the H. Subcomm. on Immigration Policy and
Enforcement of the H. Comm. on the Judiciary, 112th Cong. (2011)
[hereinafter H.R. 1932 Hearing] (statement of the American Immigration
Lawyers Association); id. (joint statement of Human Rights
Organizations); id. (statement of Human Rights First); id. (statement
of Lutheran Immigration and Refugee Services); DC Bar Letter, supra
note 9; Letter from Faith-Based Organizations and Faith Leaders, to
Members of Congress (July 12, 2011) (on file with the H. Comm. on the
Judiciary, Democratic Staff); ABA Letter, supra note 9; Judicial
Conference Letter, supra note 9; Letter from Victoria Mendez,
President, Cuban American Bar Association, to Rep. Lamar Smith & Rep.
John Conyers, Jr. (May 23, 2011) (on file with the H. Comm. on the
Judiciary, Democratic Staff); Letter from Antonio M. Ginatta, Advocacy
Director, U.S. Program, Human Rights Watch, to Rep. Elton Gallegly &
Rep. Zoe Lofgren (May 23, 2011) (on file with the H. Comm. on the
Judiciary, Democratic Staff); Letter from Immigration and
Constitutional Law Professors and Scholars, to Rep. Lamar Smith and
Rep. John Conyers, Jr. (May 23, 2011) (on file with the H. Comm. on the
Judiciary, Democratic Staff); Letter from America's Voice Education
Fund, et al. to Rep. Elton Gallegly & Rep. Zoe Lofgren (May 23, 2011)
(on file with the H. Comm. on the Judiciary, Democratic Staff); Letter
from Mary Meg McCarthy, Executive Director, National Immigrant Justice
Center, to Rep. Elton Gallegly & Rep. Zoe Lofgren (May 23, 2011) (on
file with the H. Comm. on the Judiciary, Democratic Staff); Letter from
Doua Thor, Executive Director, Southeast Asia Resource Action Center,
to Rep. Elton Gallegly & Rep. Zoe Lofgren, May 23, 2011 (on file with
the H. Comm. on the Judiciary, Democratic Staff); Letter from Mason C.
Clutter, Counsel, Rule of Law Program, The Constitution Project, to
Rep. Lamar Smith & Rep. John Conyers, Jr. (May 23, 2011) (on file with
the House of Representatives Committee on the Judiciary, Democratic
Staff); Letter from Vincent Cochetel, Regional Representative, United
Nations High Commissioner for Refugees, to Rep. Elton Gallegly & Rep.
Zoe Lofgren (May 23, 2011) (on file with the H. Comm. on the Judiciary,
Democratic Staff); Letter from Emily Tucker, Director of Policy and
Advocacy, Detention Watch Network, to Rep. Elton Gallegly & Rep. Zoe
Lofgren (May 23, 2011) (on file with the H. Comm. on the Judiciary,
Democratic Staff).
---------------------------------------------------------------------------
For these reasons, and those discussed below, we
respectfully dissent and urge our colleagues to reject this
dangerous and unconstitutional legislation.

II. BACKGROUND

In the context of civil immigration detention, courts have
separately addressed the problems of ``indefinite detention,''
which refers to individuals who are subject to final orders of
removal, but who are not likely to be removed in the reasonably
foreseeable future, and ``prolonged detention,'' which refers
to the lengthy detention of individuals who are not yet subject
to final orders of removal. H.R. 1932 amends the Immigration
and Nationality Act (INA) to expand both forms of detention
without meaningful procedural protections and to restrict the
ability of civil immigration detainees to challenge the
legality of their detention in Federal court.
A. Indefinite Detention
In Zadvydas v. Davis, the U.S. Supreme Court held that
indefinite detention of a non-citizen who has been ordered
removed, but whose removal is not significantly likely to occur
in the reasonably foreseeable future, would raise serious
constitutional concerns. The Court held further that preventive
detention based on dangerousness is authorized only when
limited to specially dangerous persons and only when
accompanied by strong procedural protections. The Court noted
that ``the Due Process Clause applies to all `persons' within
the United States, including aliens, whether their presence
here is lawful, unlawful, temporary, or permanent,'' and that
``[f]reedom from imprisonment--from government custody,
detention or other forms of physical restraint--lies at the
heart of the liberty that Clause protects.''\11\
---------------------------------------------------------------------------
\11\Zadvydas, 533 U.S. at 693, 690. The Court extended the holding
in Zadvydas to persons ordered removed on grounds of inadmissibility in
Clark v. Martinez, 543 U.S. 371 (2005).
---------------------------------------------------------------------------
To avoid reaching that constitutional question, the Court
construed the immigration laws to authorize detention only to
the point where ``removal is no longer reasonably
foreseeable.''\12\ The Court held that for persons who have
been ordered deported, immigration authorities have a
presumptively reasonable 6-month period in which to accomplish
all removals. If, after 6 months, the government determines
that the detainee's removal is not significantly likely to
occur in the reasonably foreseeable future, the Department of
Homeland Security (DHS) must release the detainee on conditions
of supervision.\13\
---------------------------------------------------------------------------
\12\Zadvydas, 533 U.S. at 699.
\13\Id. at 701.
---------------------------------------------------------------------------
The Supreme Court's decision in Zadvydas reversed a long-
standing policy of indefinitely detaining persons from
countries that have historically obstructed our efforts to
remove their nationals from the United States. This included
Laos, Vietnam, Cuba, Cambodia, and several other countries. It
also affected stateless persons such as Kestutis Zadvydas, who
was born of Lithuanian parents in a displaced persons camp in
Germany in 1948 and was a citizen of neither Lithuania, nor
Germany.\14\
---------------------------------------------------------------------------
\14\Id. at 684.
---------------------------------------------------------------------------
In the aftermath of Zadvydas, DHS promulgated regulations
requiring post-order custody reviews. Under these regulations,
if DHS cannot remove a person within the 90-day removal period
established in the INA,\15\ the government must provide a post-
order custody review to determine if the person can be
released.\16\ If the person remains in detention 6 months after
the removal order becomes final, another custody review must be
conducted.\17\ The regulations provide for notice and an
opportunity to submit written materials in support of release.
A separate provision in the law also allows DHS to continue
holding a person if that person is obstructing the government's
efforts to facilitate removal.\18\
---------------------------------------------------------------------------
\15\INA Sec. 241(a)(1).
\16\8 C.F.R. Sec. 241.4.
\17\Id.
\18\Id.
---------------------------------------------------------------------------
The Ninth Circuit Court of Appeals recently held that the
Due Process Clause requires more robust procedural protections
than those provided in the regulations.\19\ The regulations do
not require an in-person hearing before a neutral arbiter, such
as an Immigration Judge, and they require the detainee to prove
that he or she is not a flight risk or a danger to the
community, rather than requiring DHS to prove that continued
deprivation of liberty is justified.
---------------------------------------------------------------------------
\19\Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011).
---------------------------------------------------------------------------
If a person cooperates in the government's removal efforts,
the regulations permit preventive, indefinite detention beyond
the point when civil immigration detention no longer serves its
purpose of helping to effectuate removal only in limited
circumstances involving threats to national security and public
safety.\20\ If DHS invokes such grounds based upon a finding
that the alien is ``specially dangerous,'' the detainee must
have a hearing before an Immigration Judge at which DHS bears
the burden of proving by clear and convincing evidence the
appropriateness of continued detention.\21\
---------------------------------------------------------------------------
\20\8 C.F.R. Sec. 241.14.
\21\8 C.F.R. Sec. 241.14(f), (g), (h), (i).
---------------------------------------------------------------------------
The Supreme Court has not yet ruled on whether the
regulations permitting indefinite detention on these special
grounds are permissible, but the circuit courts are split on
that question. Although the Tenth Circuit Court of Appeals has
approved the regulations, the Fifth and Ninth Circuits have
struck them down.\22\
---------------------------------------------------------------------------
\22\Cf. Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir.
2008) with Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008); Thai v.
Ashcroft, 366 F.3d 790 (9th Cir. 2004).
---------------------------------------------------------------------------
B. Prolonged and Mandatory Detention
Under the current mandatory detention statute, Federal
immigration officials are required to detain certain persons
during their removal proceedings and cannot authorize their
release on bond.\23\ Mandatory detention is an exception to the
general rule, which gives U.S. Immigration and Customs
Enforcement (ICE) officials the discretion to detain people in
removal proceedings and the discretion to release them on bond
or conditional parole pending the completion of their removal
proceedings.\24\ Under the general rule, the amount of bond
will be determined based on the person's risk of flight or
danger to the community, and the person has the right to a bond
hearing before an Immigration Judge on this issue. People
subject to mandatory detention under section 236(c) of the INA
do not get a bond hearing. Instead, they must remain in
detention while their removal case is pending, even if they
present no danger to the community or risk of flight.
---------------------------------------------------------------------------
\23\INA Sec. 236(c).
\24\INA Sec. 236(a).
---------------------------------------------------------------------------
The Supreme Court has affirmed the constitutionality of
mandatory detention under section 236(c), holding that
detention can be required for certain persons for ``the brief
period necessary'' for the conclusion of removal
proceedings.''\25\ The record before the Court at that time
indicated that 85 percent of cases involving mandatory
detention under section 236(c) are completed within an average
of 47 days.\26\
---------------------------------------------------------------------------
\25\Demore v. Kim, 538 U.S. 510, 513 (2003).
\26\Id. at 529.
---------------------------------------------------------------------------
Based upon the Court's holding, lower courts have
considered whether the prolonged detention of persons detained
far beyond the ``brief period necessary'' for completion of
removal proceedings raises serious constitutional concerns.\27\
In Nadarajah v. Gonzales, for instance, the Ninth Circuit
granted a habeas corpus petition and ordered release of a Sri
Lankan survivor of torture who requested asylum upon arriving
in the United States.\28\ The man was detained for almost five
years, notwithstanding the fact that an asylum officer found
that he possessed a credible fear of persecution; an
Immigration Judge twice granted his request for asylum and
relief under the Convention Against Torture; and the Board of
Immigration Appeals affirmed the Immigration Judge's grant of
asylum. Similarly, Baskaran Balasundaram was a farmer in Sri
Lanka who fled his homeland after suffering torture and
persecution at the hands of the Tamil Tigers.\29\ Detained upon
his arrival in the country, Mr. Balasundaram was detained for 7
months before an Immigration Judge granted him asylum.
Nevertheless, his detention continued for 17 more months while
ICE pursued an administrative appeal of his case.\30\ Both men
remained detained long after the grant of asylum only because
DHS appealed their victories, and under the regulations it was
DHS, rather than the Immigration Judge, who had authority to
grant release.
---------------------------------------------------------------------------
\27\See, e.g., Diop v. ICE/Homeland Security, No. 10-1113, slip op.
at 16, 20 (3d Cir. Sept. 1, 2011) (holding that three-year long
detention without a bond hearing violated due process and construing
INA Sec. 236(c) as only authorizing detention ``for a reasonable amount
of time'' before the government bears the burden of proving the
necessity of continued detention at an individualized bond hearing;
Casas-Castrillon v. DHS, 535 F.3d 942, 950 (9th Cir. 2008); Tijani v.
Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (both construing INA
Sec. 236(c) as only authorizing detention for ``expeditious'' removal
proceedings in order to avoid the serious constitutional problem of
prolonged mandatory detention); Ly v. Hansen, 351 F.3d 263, 271-72 (6th
Cir. 2003) (construing INA Sec. 236(c) as only authorizing mandatory
detention for the period of time reasonably needed to conclude
proceedings promptly); Welch v. Ashcroft, 293 F.3d 213, 224 (4th Cir.
2002) (holding that ``[f]ourteen months of incarceration . . . of a
longtime resident alien with extensive community ties, with no chance
of release and no speedy adjudication rights'' to be impermissible);
Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455, 468-71 (D. Mass.
2010) (construing INA Sec. 236(c) to implicitly require that removal
proceedings be completed within a reasonable period of time; if not,
detention can only continue after an individualized determination of
flight risk and dangerousness); Alli v. Decker, 644 F. Supp. 2d 535,
539 (M.D. Pa. 2009) (noting ``the growing consensus . . . throughout
the federal courts'' that prolonged mandatory detention raises serious
constitutional problems).
\28\Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006).
\29\H.R. 1932 Hearing (statement of Ahilan Arulanantham, Deputy
Legal Director, American Civil Liberties Union of Southern California),
supra note 10.
\30\Maria Sacchetti, Man Held As Security Risk Released; Says He
was Tortured in Sri Lanka, Boston Globe, July 10, 2010.
---------------------------------------------------------------------------
Prolonged detention affects not only arriving asylum
seekers, but also longtime lawful permanent residents. Warren
Joseph, a lawful permanent resident and the father of five
United States citizen children, is a decorated veteran of the
first Gulf War.\31\ After struggling with Post Traumatic Stress
Disorder, Mr. Joseph was convicted in 2001 of unlawfully
purchasing a handgun. He fully cooperated with the Federal
investigation and was given no jail time for this offense, but
two years later he violated his parole by moving into his
mother's house without providing notice to his probation
officer. Upon completing his 6-month sentence, he was placed in
removal proceedings and transferred to ICE custody. For more
than three years, Mr. Joseph was detained by ICE pursuant to
INA section 236(c), and was never provided a bond hearing or
any independent review of the appropriateness or necessity of
his continued detention. It was only when a Federal judge
ordered a hearing on the appropriateness of his detention and
the Immigration Judge granted relief than ICE decided to
release him from custody.\32\
---------------------------------------------------------------------------
\31\Tina Kelley, Veteran Facing Deportation Wins Hearing for
Freedom, N.Y. Times, May 23, 2007; see also H.R. 1932 Hearing
(statement of Ahilan Arulanantham, Deputy Legal Director, American
Civil Liberties Union of Southern California), supra note 10.
\32\H.R. 1932 Hearing (statement of Ahilan Arulanantham, Deputy
Legal Director, American Civil Liberties Union of Southern California),
supra note 10.
---------------------------------------------------------------------------

III. DESCRIPTION OF THE BILL

A. Indefinite Detention--Section 2(a)
Section 2(a)(6) of H.R. 1932 authorizes indefinite, and
possibly permanent, detention of persons who have been ordered
removed and have cooperated with efforts to remove them. Unlike
existing regulations that already authorize the continued
detention of persons who are ``specially dangerous'' based upon
a past conviction for a crime of violence and the existence of
a mental condition that makes future acts of violence likely,
section 2(a)(6) applies broadly even to persons who are not
``specially dangerous.'' The bill authorizes indefinite
detention for persons who have been convicted of a single
aggravated felony, which can include minor, non-violent
offenses. Moreover, whereas the regulations attempt to provide
the strong procedural protections required by the Supreme Court
for such preventive detention, section 2(a)(6) requires nothing
more than a discretionary certification of dangerousness by the
Secretary of Homeland Security and periodic administrative
review.
Section 2(a)(7) requires that all habeas corpus petitions
challenging the legality of post-order detention be filed in
the U.S. District Court for the District of Columbia. In
general, habeas corpus petitions traditionally have been
brought in the district court where the detainee is located.
B. Prolonged and Mandatory Detention--Section 2(b)
Although the sponsor of H.R. 1932 states that it is
intended only to protect Americans from ``dangerous criminal
immigrants,''\33\ section 2(b)(2) of the bill authorizes the
prolonged detention throughout removal proceedings of arriving
asylum seekers and aliens who entered without inspection who
have committed no crime and who pose no danger to the public
and lawful permanent residents with minor convictions who are
returning from foreign travel.\34\ Section 2(b)(2) also
provides that the time an arriving alien spends in detention
during removal proceedings ``shall not affect'' any
determination about the reasonable length of detention
following a final order of removal.
---------------------------------------------------------------------------
\33\H.R. 1932 Hearing (statement of Rep. Lamar Smith), supra note
10.
\34\See 8 C.F.R. Sec. 1001.1(q); Sec. 235.3(b)(5) (classifying
lawful permanent residents who return from foreign travel as ``arriving
aliens'').
---------------------------------------------------------------------------
Sections 2(b)(2) and 2(b)(3) limit challenges to the
lawfulness of pre-order detention to habeas corpus proceedings
filed in the U.S. District Court for the District of Columbia.
Section 2(b)(4) makes a significant change to INA section
236, the general pre-order immigration detention statute. As
amended, section 2(b)(4) provides that all non-citizens subject
to detention under INA Sec. 236 ``may be detained . . . without
limitation, until the alien is subject to a final order of
removal.''
Section 2(b)(5) amends INA section 236(c), the mandatory
detention statute, to require detention ``any time after the
alien is released, without regard to whether the release is
related to any activity, offense, or conviction described in
this paragraph.'' This expands the scope of mandatory detention
to include persons who have been at liberty for years and
leading productive lives on the basis of old criminal offenses,
rather than applying mandatory detention to non-citizens at the
time of their release from sentences for designated crimes. It
also adds a new provision stating that ``[i]f the [criminal]
activity . . . does not result in the alien being taken into
custody,'' DHS ``shall'' take custody ``when the presence of
the alien in the United States is brought to the attention of
[DHS] or when [DHS] determines it is practical to take such
alien into custody.'' In addition, section 2(b)(5) amends INA
section 236(c) such that, in certain instances, mere
``activity'' will trigger mandatory detention, regardless of
whether that ``activity'' gives rise to a formal charge, much
less a conviction and criminal custody.
Section 2(b)(6) restricts the Attorney General's review
over custody under INA section 236(a) to three issues:
``whether the alien may be detained, released on bond . . . or
released with no bond.'' This provision prohibits Immigration
Judges from setting conditions of release such as electronic
monitoring, supervision appointments, curfews, and travel
restrictions.
Section 2(b)(6) also amends INA section 236 largely to
codify regulations restricting the Attorney General's review of
custody for certain classes of individuals to ``a determination
of whether the alien is properly included in such category.''
The provision expressly bars Immigration Judges from making
bond determinations for persons ``described in'' the mandatory
detention statute and implicitly bars Immigration Judges from
making bond determinations for asylum seekers and other
arriving aliens detained pursuant to INA section 235.

IV. PRINCIPAL CONCERNS WITH H.R. 1932

A. LH.R. 1932 Would Unconstitutionally Permit Indefinite Detention of
Broad Categories of Immigrants with Virtually No Procedural
Protections
As explained above, the Supreme Court in Zadvydas reviewed
the strong due process protections that would be implicated by
a statute authorizing indefinite detention of immigrants with
final orders of removal who are cooperating with removal
efforts, but who are not likely to be removed in the reasonably
foreseeable future. The Supreme Court has ``upheld preventive
detention based on dangerousness only when limited to specially
dangerous individuals and subject to strong procedural
protections.''\35\ In United States v. Salerno, the Supreme
Court approved preventive detention of pre-trial criminal
detainees under the Bail Reform Act because it involved
stringent time limits, was reserved for the most serious of
crimes, and required the government to prove dangerousness by
clear and convincing evidence at a hearing before a Federal
district court judge.\36\ Moreover, where preventive detention
based on dangerousness may be indefinite in duration, the Court
has required more than just special dangerousness; the Court
has required proof of an additional factor, such as mental
illness that makes it difficult, or impossible, for the person
to control his dangerous behavior.\37\
---------------------------------------------------------------------------
\35\Zadvydas, 533 U.S. at 691.
\36\United States v. Salerno, 481 U.S. 739, 747 (1987). In Foucha
v. Louisiana, the Court invalidated a civil commitment statute placing
the burden on the detainee to prove nondangerousness at a hearing.
Foucha v. Louisiana, 504 U.S. 71, 81-82 (1992).
\37\Kansas v. Hendricks, 521 U.S. 346, 358-60 (1997).
---------------------------------------------------------------------------
H.R. 1932 is unconstitutional because it authorizes
indefinite detention for a broad set of persons without regard
for special dangerousness. The bill permits ICE to indefinitely
detain a person convicted of one ``aggravated felony.'' As
defined in the INA, a crime can be an aggravated felony even if
it was neither aggravated, nor a felony.\38\ Nearly any drug
offense (including most drug possession) is an aggravated
felony, and the term can include petty offenses, such as
passing a bad check as well as shoplifting, with a prior
conviction. Although indefinite detention on such a ground also
requires the Secretary of Homeland Security or Assistant
Secretary for ICE to certify that release will ``threaten the
safety of the community or any person'' and that ``conditions
of release cannot reasonably be expected to ensure the safety
of the community or any person,'' the language is so broadly
written that it could unconstitutionally authorize the
detention of persons who are not ``specially dangerous.''
Moreover, the language does not require that any additional
factor, such as mental illness, be present, notwithstanding the
fact that such detention may be indefinite in duration.
---------------------------------------------------------------------------
\38\See INA Sec. 101(a)(43).
---------------------------------------------------------------------------
The bill also falls woefully short of the constitutional
requirements for ``strong procedural protections.'' Under H.R.
1932, a person could be held indefinitely based upon a mere
certification by a government official. The person is not
entitled to a hearing before an Immigration Judge or even a
personal interview. And although approximately 84 percent of
immigration detainees are unrepresented in removal
proceedings,\39\ there is no requirement of appointment of
counsel in connection with this preventive detention decision.
As Pepperdine University School of Law Professor Bruce J.
Einhorn, who was formerly an Immigration Judge and Federal
prosecutor, observed when criticizing this bill, ``[T]his
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.''\40\
---------------------------------------------------------------------------
\39\The Executive Office for Immigration Review: Hearing Before the
H. Subcomm. on Immigration, Citizenship, Refugees, Border Security and
International Law of the H. Comm. on the Judiciary, 111th Cong (2010)
(statement of Karen T. Grisez, Chair, Commission on Immigration,
American Bar Association).
\40\Bruce J. Einhorn, ``Keep Our Communities Safe Act'' Takes the
Wrong Approach, The Hill's Congressional Blog, July 27, 2011.
---------------------------------------------------------------------------
And Asa Hutchinson, former Republican congressman and DHS
undersecretary, made a similar point in an op-ed criticizing
the bill. Hutchinson wrote: ``If America stands for anything in
the world (and it does), it is that our government cannot
detain individuals without providing an opportunity for
meaningful, independent review. This right, which belongs to
the innocent and guilty alike, should also extend to the
noncitizen awaiting removal to his home country.''\41\
---------------------------------------------------------------------------
\41\Asa Hutchinson, ``Let's Use a Scalpel with Detention Bill,''
Houston Chron., Sept. 23, 2011.
---------------------------------------------------------------------------
While H.R. 1932 provides no procedural protections
whatsoever, current Federal law offers robust procedural
protections for persons suffering from mental illness who may
be involuntarily hospitalized at the end of their prison
sentences on the ground that they present a danger to the
public that cannot be mitigated.\42\ The law provides for the
appointment of counsel, requires the government to prove its
case by clear and convincing evidence before a Federal district
court judge, and mandates treatment if detention is warranted.
States also have procedures for civil commitment and
involuntary hospitalization and those procedures generally are
available for persons being released from immigration
detention. And as described above, current immigration
regulations provide for further detention in these limited
circumstances, but they require ICE to demonstrate to an
Immigration Judge by clear and convincing evidence the
appropriateness of further detention.\43\
---------------------------------------------------------------------------
\42\18 U.S.C. Sec. 4246.
\43\8 C.F.R. Sec. 241.14
---------------------------------------------------------------------------
While the bill's proponents would argue that the existence
of habeas corpus provides sufficient procedural protection for
persons condemned to indefinite detention by the stroke of a
pen, that argument is mistaken for two principal reasons.
First, as a practical matter the bill's consolidation of all
immigration detention habeas corpus petitions into the D.C.
District Court substantially diminishes the likelihood that
such petitions will be handled promptly. As discussed further
below, the consolidation of habeas corpus petitions in this
bill is an attack on judicial review and it degrades The Great
Writ that is protected by our Constitution and at the heart of
our very democracy.
Second, because the writ of habeas corpus is designed to be
a final stopgap to prevent the unlawful deprivation of liberty,
it cannot, by itself, make constitutional an unconstitutionally
designed system. For instance, the Sixth Amendment guarantees
the right to counsel and a jury trial in certain criminal
matters. If Congress enacted a law that provided for criminal
punishment without the rights guaranteed by the Sixth
Amendment, the fact that the prisoner would retain the right to
challenge the lawfulness of his imprisonment would not save the
statute from being ruled unconstitutional. Similarly, the
Supreme Court has made it amply clear that preventive detention
such as that authorized by H.R. 1932 is constitutional only
where limited to special circumstances and only when
accompanied by strong procedural protections. H.R. 1932 is
unconstitutional because it falls far short of both of those
requirements and the bill cannot be saved simply by the fact
that detainees may still challenge their detention through
writs of habeas corpus.
B. LH.R. 1932 Does Absolutely Nothing To Address the Problem of
Countries Who Refuse to Accept, or Significantly Delay, the
Return of Persons Ordered Removed From the United States.
In addition to being unconstitutional, the bill does
nothing to solve the problem that section 2(a) of the bill
purports to address--namely, the problem of countries who
refuse to accept, or significantly delay, the return of persons
ordered removed from the United States. Except in the case of
persons who are truly stateless, the issue of indefinite
detention only arises when a country resists efforts to return
its nationals. Some countries are worse than others in this
respect. Although the United States has diplomatic relations
with China and India, for instance, both countries are often
very slow to help us process travel documents. Cuban nationals
make up approximately one-half of all indefinite detainees in
our custody at any given point and although we have returned
some people to Cuba, we generally are unable to do so because
we lack diplomatic ties with that country.
Current law provides only one tool by which we can
influence countries that resist efforts to return their
nationals. INA section 243(d) provides that if the Secretary of
Homeland Security notifies the Secretary of State that a
foreign government is denying or unreasonably delaying the
return of one of its nationals, the Secretary of State must
order consular officers to deny future immigrant visas or
nonimmigrant visas, or both, until the situation is resolved.
Denying all immigrant and/or nonimmigrant visas would be an
extremely serious sanction. Exercising this authority would
punish Americans who have waited years to reunite with family
members and businesses that have hired persons with needed
skills. Because tourism is a critical industry for America,
denying all nonimmigrant visas from a particular country (such
as China) also would harm our Nation's economy. Finally,
placing such a powerful tool in the hands of DHS--which is not
principally charged with visa issuance and maintenance of
diplomatic ties--raises foreign policy concerns.
At a legislative hearing on H.R. 1932 before the
Subcommittee on Immigration Policy and Enforcement, we learned
that ICE and the State Department recently signed a Memorandum
of Agreement (MOA) that lays out a series of steps that they
can take to influence countries to accept return of their
nationals.\44\ Although use of INA section 243(d) is the most
serious step that can be taken, the State Department can begin
by issuing a demarche (a formal diplomatic statement of views)
and can escalate from there. ICE testified that the MOA is
already beginning to make a difference; after a recent meeting,
Bangladesh processed several long-delayed cases and China has
begun to make improvements.\45\
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\44\H.R. 1932 Hearing (statement of Gary Mead, Associate Executive
Director, Enforcement and Removal Operations, U.S. Immigration and
Customs Enforcement), supra note 10.
\45\Id.
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An amendment offered by Rep. Zoe Lofgren that would have
provided the State Department with additional tools to address
this problem, such as the authority to deny diplomatic visas to
officials from recalcitrant foreign governments that refuse to
timely accept return of their nationals, was ruled non-germane
by the Chairman of the Judiciary Committee.\46\
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\46\Markup Transcript, supra note 6, at 7-13.
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C. LH.R. 1932 Authorizes the Prolonged Detention--Without Even a Bond
Hearing--of Aliens Who Entered Without Inspection and All
Arriving Aliens, Including Asylum Seekers and Returning Lawful
Permanent Residents Who Pose Neither a Danger to the Public,
Nor a Flight Risk.
Although H.R. 1932 purports to be about community safety
and ``dangerous aliens,'' section 2(b) of the bill would permit
the prolonged detention of persons who are neither a danger to
the public, nor a flight risk. Sections 2(b)(2) and 2(b)(6) of
the legislation provide that all aliens who entered without
inspection and all arriving aliens may be detained without any
limitation in time and that Immigration Judges shall not have
jurisdiction to consider whether such aliens pose a danger to
the public or a risk of flight. Under this bill, persons who
request asylum at the airport and are found to have a credible
fear of persecution may be detained by DHS for years without
ever having an opportunity for a hearing to test the necessity
or appropriateness of their detention. Such persons would still
be eligible for release based on the Secretary's discretion,
but they would have no right to an impartial hearing.
Detaining a person who poses neither a danger to the
community, nor a risk of flight, is not only poor policy, but
it is also extremely costly. According to DHS's budget
justification to Congress for Fiscal Year 2012, the average
daily bed rate for a person in immigration custody is $122 or
nearly $45,000 per year.\47\ At the legislative hearing on this
bill, Chairman Smith argued that the extraordinary cost of
prolonged detention is justified by the added security it
provides to members of the public. He said:
---------------------------------------------------------------------------
\47\U.S. Department of Homeland Security, Fiscal Year 2012
Congressional Budget Justification, at 938, available at http://
www.dhs.gov/xlibrary/assets/dhs-congressional-budget-justification-
fy2012.pdf.
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[I]t just seems to me that considering the thousands of
preventable crimes that occur every year, including the murder
of police officers, that we ought not be so concerned about the
$45,000 a year. We ought to be more concerned about the safety
and lives of innocent Americans.\48\
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\48\H.R. 1932 Hearing, supra note 10.
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Nevertheless, Judiciary Republicans at the Committee's
markup of this bill voted down an amendment offered by Ranking
Member John Conyers, Jr. that would have stricken only the
portions of the bill that authorize prolonged detention of non-
criminal aliens who entered without inspection and arriving
asylum seekers and returning lawful permanent residents who
pose neither a danger to the public, nor a risk of flight.\49\
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\49\Markup Transcript, supra note 6, at 105-25.
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D. LH.R. 1932 Authorizes the Mandatory Detention--Without Consideration
for Bond--of Lawful Permanent Residents with Old Convictions
Who Pose Neither a Danger to the Public, Nor a Flight Risk
Just as Section 2(b)(2) of the bill gives DHS complete
authority to detain for a prolonged period of time certain
persons who are neither a danger to the public, nor a flight
risk, section 2(b)(5) expands the mandatory detention of
persons, without the possibility of release on bond and without
consideration of whether detention is necessary. INA section
236(c), the mandatory detention statute, already applies to
persons who: (1) are inadmissible or deportable on account of
certain enumerated criminal grounds of removal, and (2) have
been ``released'' from custody for such an offense. In
reviewing current law, lower courts around the country have
recognized that prolonged mandatory detention with no
opportunity for an independent review of the appropriateness of
continued detention raises serious constitutional problems.\50\
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\50\See supra note 27.
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Section 2(b)(5) greatly expands the number of people
subject to mandatory detention by eliminating the requirement
that the release from criminal custody be tied to the offense
triggering mandatory detention. This means that mandatory
detention would apply to individuals who have long since been
released from criminal custody for any offense listed in the
statute and who are now leading productive lives in the
community. The language also eliminates the requirement that
there be any prior criminal custody at all; it applies
mandatory detention to mere ``activity,'' regardless of whether
that ``activity'' gave rise to a formal charge, much less a
conviction and a prison or jail sentence.
Without the legislation, such persons would still be
eligible for detention if they posed a danger to the public or
represented a risk of flight. Mandating their detention,
without permitting ICE or an Immigration Judge to consider
release on bond, is unwise, inefficient, and raises serious
constitutional concerns.
E. LGiven Limited Resources and Available Bed Space, the Expansion of
Unnecessary Detention in H.R. 1932 Will Make Us Less Safe
The stated purpose of H.R. 1932 is to protect the American
public from ``dangerous and violent illegal immigrants and
those who are a threat to our national security.''\51\ The
bill, however, authorizes prolonged detention of persons
fleeing persecution and torture and expands the mandatory
detention of people who pose neither a threat to the public,
nor a risk of flight. Given the reality that our immigration
detention resources are great, but limited, increasing the
detention of persons who pose no threat to American society
will necessarily diminish our ability to detain persons who do
pose such a threat. If this bill were enacted, not only would
it waste American taxpayers' money before being struck down as
unconstitutional, but it actually would have the perverse
effect of making us less safe.\52\
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\51\Markup Transcript, supra note 6, at 25.
\52\As Pepperdine University School of Law Professor Bruce Einhorn
observed, ``[T]he 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.'' Einhorn,
supra note at 40.
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F. LBy Consolidating All Habeas Corpus Petitions into the U.S. District
Court for the District of Columbia, H.R. 1932 Will Overwhelm
the Court and Unfairly Burden Distant Litigants
The ability to petition for a writ of habeas corpus to
challenge the legality of detention is a fundamental guarantee
of the Constitution and one of the few remaining tools
available to immigration detainees. In general, habeas corpus
petitions have traditionally been brought in the district court
where the detainee is located.
The legislation disrupts this rule by requiring all
immigration detention habeas petitions challenging the legality
of mandatory, prolonged, and indefinite detention to be filed
in the U.S. District Court for the District of Columbia.
Consolidating all immigration detention habeas petitions from
around the United States into one Federal district court will
overwhelm that court. In the District of Columbia, several
hundred habeas corpus petitions filed by persons detained at
the Guantanamo facility forced the court to adopt a resolution
for the coordination and management of such cases.\53\ Chief
Judge Royce Lamberth recently stated that because of the
pending habeas corpus petitions, ``We plan to try very few
civil cases this spring and summer [2011]. . . . This is as bad
as I've seen it.''\54\
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\53\Jennifer K. Elsea & Michael John Garcia, Enemy Combatant
Detainees: Habeas Corpus Challenges in Federal Court, Congressional
Research Service, RL33180 at 38-39 (Apr. 5, 2010).
\54\Bill Mears, Judicial Nominee Logjam Creates ``Crisis'' in Some
Federal Courts, CNN (Mar. 4, 2011), at: http://articles.cnn.com/2011-
03-03/politics/arizona.judicial.logjam_1_chief-judge-john-roll-federal-
courts-federal-judges?_s=PM:POLITICS.
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The Courts, Lawyers and Administration of Justice Section
of the District of Columbia Bar has expressed concern that
enactment of this bill could funnel as many as one thousand
habeas corpus petitions annually into the U.S. District Court
for the District of Columbia, which would represent a 33%
increase in the caseload of the court.\55\ According to the
Section, ``That added volume has the potential to substantially
and negatively affect the ability of the court to handle its
other important business.''\56\
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\55\DC Bar Letter, supra note 9.
\56\Id.
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Moreover, because immigration detainees are not entitled to
government-paid counsel and are frequently housed in remote
locations far from family and friends, they must already
overcome significant barriers to seek habeas relief.
Consolidating all such cases in the D.C. District Court may
diminish the willingness of attorneys to represent detainees in
such actions. According to the American Bar Association, ``The
bill's provisions would increase the expense of pursuing
judicial review of detention for those who are detained in
facilities far distant from the District of Columbia, and would
be particularly burdensome or even prohibitive for immigrants
represented by non-profit agencies or pro bono counsel.''\57\
The Judicial Conference of the United States, the principal
policymaking body for the judicial branch, similarly noted in a
letter to the Committee that ``individual litigants may be
unfairly burdened by a system of exclusive review in a distant
tribunal.''\58\
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\57\ABA Letter, supra note 9.
\58\Judicial Conference Letter, supra note 9.
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An amendment offered by Rep. Jerrold Nadler that would have
stricken the three provisions in the bill consolidating habeas
corpus petitions into D.C. District Court was opposed by
Chairman Smith, who argued that consolidation was necessary
because ``district courts around the country have applied the
Zadvydas principles in an inconsistent manner with respect to
habeas proceedings.''\59\ But differences of opinion between
district courts are not resolved by consolidating cases into a
single forum. Rather, such differences are meant to percolate
through our judicial system, first resulting in rulings from
our twelve circuit courts of appeal and then, where there are
differences among the circuits, in definitive rulings from the
Supreme Court. The consolidation provisions in H.R. 1932
undermine this core feature of our judicial system.
---------------------------------------------------------------------------
\59\Markup Transcript, supra note 6, at 86-93.
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During the debate, Chairman Smith indicated his willingness
to discuss Rep. Nadler's amendment before the bill moves to the
House Floor.\60\ Based upon this commitment, Rep. Nadler agreed
to withdraw his amendment.\61\ We understand that Chairman
Smith has agreed to strike all three provisions of the bill
consolidating habeas corpus petitions into the D.C. District
Court before further action is taken on the bill. We appreciate
the Chairman's efforts to negotiate over these provisions and
are pleased with the agreement that was struck pertaining to
these provisions.
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\60\Id. at 94-95.
\61\Id. at 97.
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V. CONCLUSION

As we began the 112th Congress, we consistently heard two
main themes from the new Majority. First, we must honor the
Constitution and protect basic civil liberties. Second, we need
to cut the budget and exercise fiscal responsibility.
Unfortunately, H.R. 1932 achieves neither of these goals.
By authorizing the prolonged and indefinite detention of
persons with little or no procedural protections, the bill is a
massive expansion of government authority with no respect for
the constitutionally protected liberty interest. And while the
bill's short title would suggest that its goal is to ``Keep Our
Communities Safe,'' expanding prolonged detention without a
bond hearing to arriving asylum seekers, non-criminal aliens
who entered without inspection, and other immigrants who pose
no risk to the public will only make us less safe.
H.R. 1932 is an extremely costly and largely
unconstitutional response to a problem that the bill does not
even attempt to remedy. For all of these reasons, we
respectfully dissent and urge our colleagues to reject this
legislation.

John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. ``Bobby'' Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Pedro R. Pierluisi.
Mike Quigley.
Judy Chu.
Ted Deutch.
Linda T. Sanchez.