The Supreme Court struck indefinite detention down as an affront to liberty in Zadvydas v. Davis stating, “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty [the due process] clause protects.”
Even so, emboldened by the far-reaching legislation, the former Immigration and Naturalization Service (INS) and its attorneys interpreted the statute as broadly as possible. Instead of accepting the burden of proof, as is standard in all other contexts when there is a deprivation of liberty, jailed immigrants were forced to prove that the INS (and now the DHS) could not deport them.
Not surprisingly, by August 2008, public officials such as James Pendergraph, Former Executive director of the ICE Office of State and Local Coordination, were so drunk on power that he publicly stated in a room full of law enforcement officers, “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we [the ICE] can make him disappear.” The legacy of IIRIRA remains profound and cruel.
Since then, thousands of people walking toward the American dream have lost their lives to human rights abuses in the desert, leaving behind their devastated families who just want to know what happened. It is impossible to measure the harm that IRRIRA has wrought on the families of U.S. citizens and their communities over the last fifteen years. There is no doubt that IIRIRA was too broad, too harsh, and too arbitrary to be anything but a blunt instrument that destroyed lives without making the United States any safer.
Lashing out at immigrants again, Rep. Smith’s new legislation H.R. 1932 purportedly intends only to jail dangerous criminals for life, but in practice would reach much further. Because it requires a life sentence for an “aggravated felony,” which, under immigration law, does not require violence, aggravation, or a felony conviction, it will capture thousands of people who haven’t committed violent crimes, thousands more who have committed non-violent misdemeanors, and still more who have committed no crime at all, except to seek to support their families by crossing the border.
Learn more about United States immigration and related human rights abuses by reading Amnesty’s report, Jailed Without Justice.