Why Hillary Clinton & John Kerry Share Responsibility for Criminal Alien Releases

By Jon Feere May 2014

Jon Feere is the legal policy analyst at the Center for Immigration Studies.


This six-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.

               — U.S. Supreme Court, Zadvydas vs. Davis, 2001

As Congress begins to focus on the disturbing new information uncovered by the Center for Immigration Studies — that the Obama administration released over 36,000 criminal aliens into our neighborhoods in 2013 — it is important to understand that these releases were not mandated by the Supreme Court, despite the claims of the Obama administration.

The report, "ICE Document Details 36,000 Criminal Alien Releases in 2013", by Jessica Vaughan, director of policy studies at the Center for Immigration Studies, finds that last year Immigration and Customs Enforcement (ICE) freed 36,007 convicted criminal aliens from detention who were awaiting the outcome of deportation proceedings. The group included aliens convicted of hundreds of violent and serious crimes, including homicide, sexual assault, kidnapping, and aggravated assault. The list of crimes also includes more than 16,000 drunk or drugged driving convictions. Since many had committed multiple crimes, the 36,007 aliens had nearly 88,000 convictions among them.

In response to the report, the Obama administration claimed that some of the releases were mandated by a Supreme Court ruling from 2001.1 The central case is Zadvydas v. Davis, which held that the federal government can detain aliens for deportation up to six months, but generally must release them back into the United States after that point if there is "no significant likelihood of removal in the reasonably foreseeable future". One of the main reasons such a situation arises is that a criminal alien's home country will refuse to take its nationals back. Instead of demanding that countries cooperate, the White House simply let thousands of criminal aliens go free. Vaughan estimates around 3,000 releases were based on this ruling. A spokesperson for ICE claimed that "mandatory releases account for over 72% of the homicides listed".

However, federal law requires the Secretary of State to stop issuing visas to the citizens of any country that refuses to take back its nationals. Though it has rarely been invoked, the threat understandably has the effect of getting countries to cooperate, increasing the likelihood that the alien will be returned, and thereby allowing for detention longer than six months, if necessary. (Threatening to end the issuance of visas right at the outset has resulted in a country taking back its citizens within two months.) As the Supreme Court explained, its holding "does not mean that every alien not removed must be released after six months". It is really a matter of the executive branch showing that a significant likelihood of removable exists in the reasonably foreseeable future.

Instead of following the law that requires the State Department to stop issuing visas, however, it appears that Secretaries of State Hillary Clinton and John Kerry and the Department of Homeland Security decided that it was better to simply release criminal aliens from detention and allow them to go free, despite the potential threat to public safety. There is no evidence that they stopped issuing visas to the countries from which the criminal aliens arrived. Not only is this a failure to abide by federal law, it also made it less likely that the alien would be removed, thereby allowing the Obama administration to cite the Supreme Court ruling as an excuse to release the aliens into American neighborhoods.

Specifically, the law states:

On being notified by the [DHS Secretary] that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the [DHS Secretary] asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the [DHS Secretary] notifies the Secretary that the country has accepted the alien. (8 U.S.C. § 1253(d); Emphasis added.)

Former Secretary of State Hillary Clinton and current Secretary of State John Kerry should explain why they did not follow federal law and stop the issuance of visas to the countries that have refused to take back their law-breaking citizens. DHS Secretary Jeh Johnson and former Secretary Janet Napolitino should also explain whether they directed the State Department to stop issuing visas. The release of dangerous aliens did not start with the Obama administration; officials from the Bush administration could also be questioned about releases that occurred during their tenure. Congress has given the State Department the tools to ensure that Americans do not have to live among criminals who do not belong in the country.

Zadvydas Background

About two months before the terrorist attacks of September 11, 2001, the Supreme Court took a very active role in immigration regulation in Zadvydas v. Davis, a case that effectively forced the release of thousands of criminal aliens into the United States. The case illustrated the disastrous consequences of the judicial branch abandoning the plenary power doctrine, which holds that the political branches — the legislative and the executive — have sole power to regulate all aspects of immigration as a basic attribute of sovereignty. The history of the doctrine, as well as the problems created by judicial intervention in immigration matters, was examined at length in a recent Center for Immigration Studies Backgrounder2 Although the decision resulted in the judicial branch intruding on immigration policy, it did not leave the political branches powerless over criminal aliens.

At issue in Zadvydas was the long-term detention of two criminal aliens who had been ordered deported. Kestutis Zadvydas's criminal record included drug crimes, attempted robbery, attempted burglary, and theft. He also had a history of flight from both criminal and deportation proceedings. Kim Ho Ma was involved in a gang-related shooting and was convicted of manslaughter. Immigration officials could not find a country willing to receive the aliens within the statutory 90-day removal period. In continuing to detain the aliens after 90 days, the government invoked a statute that provides:

An alien ordered removed who is inadmissible [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] 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 [certain] terms of supervision.3 (Emphasis added).

In other words, Congress granted the Attorney General — or, under today's bureaucratic framework, the Secretary of the Department of Homeland Security — the authority to detain an alien beyond 90 days if he or she found it necessary to do so for public safety reasons or otherwise. It is not an unreasonable allowance considering that immigration authorities regularly detain dangerous individuals. It is even more understandable in light of the slow bureaucratic processes that make up the U.S. and foreign immigration systems; 90 days is not always sufficient.4 The government argued that the decision "whether to continue to detain such an alien and, if so, in what circumstances and for how long" was up to the Attorney General, not the courts.5

The Supreme Court did not agree with the government's interpretation of the statute and felt that, as applied, the statute violated aliens' constitutional rights to due process. The Court took issue with what it believed to be the "indefinite detention" of Zadvydas and Ma (despite the fact that the government continued to search for a place to deport the aliens during the post-90-day period). In a close 5-4 decision, the Court held that it could not find "any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed."6 The Court then decided to "construe the statute to contain an implicit 'reasonable time' limitation."7 Clearly, on its face, the statute requires no such limitations. The Court explained their construction:

The government points to the statute's word, "may." But while "may" suggests discretion, it does not necessarily suggest unlimited discretion. In that respect the word "may" is ambiguous. Indeed, if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms.8

Of course, one could argue that Congress could not speak more clearly and that such decisions were squarely within the discretion of the Attorney General. Nevertheless, in order to eliminate what it considered the "constitutional threat" of the potentially indefinite detention of deportable aliens, the Court held that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute."9 The Court then arbitrarily decided that six months was all that was necessary for determining an alien's deportability:

After this six-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink. This six-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future."10

Put simply, a reviewing court's definition of "reasonably foreseeable" now determines the release of deportable aliens back onto the streets. Put another way, the judicial branch, rather than the political branches, will have the final say on who is allowed into the country and who is required to leave. Interestingly, the lower courts had already begun taking control; before it went to the Supreme Court, Kim Ho Ma's lower court case was decided along with approximately 100 similar detention cases in a joint order.11 It is unclear how many of these aliens in the lower proceeding were released back into our neighborhoods. Furthermore, before the decision in Zadvydas, the Immigration and Naturalization Service was holding approximately 3,000 individuals in what the Court would consider "indefinite detention." How many of these aliens were released as a result of the decision in Zadvydas is unclear. According to the Department of Justice, from January 2001 through September 2002, the INS reviewed 1,710 alien detention cases and released 1,034 (60 percent) of the aliens.12

The Court was well aware that it was stepping on the political branches' toes and weakening congressional and executive plenary power over immigration. The majority acknowledged the "greater immigration-related expertise of the executive branch" and that "principles of judicial review in this area recognize primary executive branch responsibility."13 Such realities, the Court noted, "require courts to listen with care" to the concerns of the executive.14 But such sentiment is hollow. The Court clearly moved from the "hands-off" approach articulated by the plenary power doctrine to a somewhat dismissive "listen with care" standard. It is worth noting that although the decision in Zadvydas applied only to admitted aliens later determined to be deportable, a later case — Clark v. Martinez (2005) — extended these protections to removable aliens who have never been admitted into the country, i.e. criminal illegal aliens.15

In order for the executive branch to maintain its control over immigration matters, it is necessary that officials assert their expertise and not be so quick to release aliens that pose a threat to public safety. Despite the overreach, the majority in Zadvydas does not hold that all detained aliens must be released after six months. If the White House can show a significant likelihood of removal in the reasonably foreseeable future, detention can extend beyond six months.

The Dissent Points Out Concerns. The Court's dissenting justices felt that the case ultimately was about "a claimed right of release into this country by an individual who concededly has no legal right to be here" and argued that there is "no such constitutional right."16 They also noted that the majority "offered no justification why an alien under a valid and final order of removal — which has totally extinguished whatever right to presence in this country he possessed — has any greater due process right to be released into the country than an alien at the border seeking entry."17 This is an important point: Neither type of alien has a right to be in the United States, so why should one have a claim for release into the country? Such reasoning rests solely on the seemingly arbitrary six-month time limit and, as the dissent noted, the Zadvydas case itself "demonstrates that the repatriation process may often take years to negotiate, involving difficult issues of establishing citizenship and the like."18

The dissenters also noted that the dangerousness of the alien and the risks he or she poses to society "do not diminish just because the alien cannot be deported within some foreseeable time."19 Clearly, the dangerousness of an alien and the decision about whether to release him or her is a political question — a question that should be left up to politically accountable actors who can be taken to task for making a faulty decision. By creating an arbitrary deadline for release, the ruling in Zadvydas arguably eliminates the type of accountability that can be corrected through elections: If a dangerous alien is released as a result of Zadvydas, executive branch officers can shrug their shoulders and point to the judiciary's demands, while lower court judges can shrug their shoulders noting that they have to abide by the Supreme Court's ruling.

But the dissenting justices' concerns went further than simply the release of dangerous aliens into U.S. society. For them, the larger concern was what they viewed as judicial intervention into a political process, something that upset the balance of powers. Although the majority claimed it was trying to avoid a constitutional question by deciding the case as it did, the dissent felt that the majority raised more constitutional questions than it avoided. In a scathing response, the dissenters laid out their case:

The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation's most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court's ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court's own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers.20

Had the majority shown greater respect for the plenary power doctrine, and by consequence, greater deference to the political branches, none of these glaring concerns would have been raised. But in attempting to resolve the constitutional rights of the alien, it seems the majority raised numerous and arguably more significant constitutional conflicts.

How Zadvydas Puts Foreign Powers in Control of U.S. Immigration Policy. One of the arguments for the political branches' plenary power over immigration involves a focus on foreign affairs. That issue was a factor in the Zadvydas decision. Under the Constitution, it is the executive and legislative branches that direct foreign policy matters. This ensures that the U.S. relations with other countries are consistent and reliable. As explained by the dissenting justices in Zadvydas: "judicial orders requiring release of removable aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters."21 The problem is that the majority effectively empowered foreign governments to control U.S. immigration policy. The dissenting justices in Zadvydas explained:

The result of the Court's rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nationals to force dangerous aliens upon us."22

Certainly, such political considerations are not on the average judge's radar, and they shouldn't be. Political issues are to be debated and resolved within the political branches. But the decision in Zadvydas arguably requires judges to involve the judiciary in foreign affairs. According to the dissenting justices:

One of the more alarming aspects of the Court's new venture into foreign affairs management is the suggestion that the district court can expand or contract the reasonable period of detention based on its own assessment of the course of negotiations with foreign powers. The Court says it will allow the Executive to perform its duties on its own for six months; after that, foreign relations go into judicially supervised receivership."23

By not adhering to the plenary power doctrine, the Zadvydas majority effectively relocates foreign policy considerations from experienced and accountable political actors to arguably less-politically astute judges while simultaneously politicizing the judiciary. The decision also puts foreign governments in the driver's seat.

The USA PATRIOT Act. Less than four months after Zadvydas, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the USA PATRIOT Act) of 2001 was signed into law. It authorizes the continued detention of any alien whose removal is not reasonably foreseeable if the U.S. Attorney General has "reasonable grounds to believe" that the alien represents a security threat or has been involved in terrorist activities. Such detention is indefinitely renewable in six-month increments.24 This act is viewed not only as a result of the 9/11 attacks, but also as a partial rebuke of the Zadvydas holding. Considering that the majority in Zadvydas justified the holding in that case by noting that Congress could have "spoken in clearer terms" on the issue of detaining aliens, the PATRIOT Act arguably gives the justices precisely what they wanted. In fact, a few years later, the Court seemed to specifically instruct Congress to reassert its plenary power over immigration in a 2005 immigration case when it noted the following:

The 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.25

The Court then referred to the PATRIOT Act as evidence that the political branches can and have overcome some judicial regulation of immigration policy. Of course, the PATRIOT Act addresses terrorism-related concerns. If Congress wants to continue to reassert its authority over immigration in other areas, it could draft additional legislation aimed at non-terrorist aliens.

Enforcing 8 U.S.C. § 1253(d). Congress has required the executive branch to use its authority to prevent the release of aliens that a foreign country refuses to take back. As explained earlier in this report, federal law requires the Secretary of State to discontinue granting visas to all residents of a country that refuses to take back its aliens facing deportation from the United States. Again, the law states:

On being notified by the [DHS Secretary] that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the [DHS Secretary] asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the [DHS Secretary] notifies the Secretary that the country has accepted the alien. (8 U.S.C. § 1253(d); Emphasis added.)

As detailed by the GAO in a 2004 report, according to ICE officials, several countries have consistently refused to issue travel documents or delayed issuing them, thereby limiting ICE's ability to return aliens to these countries. A report by Jessica Vaughan of the Center for Immigration Studies detailed the worst countries for travel document issuance.26 Specifically, ICE officials mentioned that they have significant problems with Cuba, Laos, Vietnam, China, India, Jamaica, former Soviet Republics, Iraq, Iran, Eritrea, Ethiopia, Poland, and Nigeria. Vaughan found that the lengthiest waits included Qatar (800 days), Cambodia (522 days), St. Kitts and Nevis (410 days), Kuwait (376 days), and Vietnam (368 days). ICE headquarters and field officials cited a variety of reasons why governments may not want to issue a travel document for their nationals. ICE explained that one reason is that some foreign countries want assurance that the aliens will have the means to support themselves when they are returned. If the alien is poor or a threat to public safety, some countries will refuse to cooperate and the State Department will simply release the alien into the United States thereby creating a burden for American citizens.

In its report the GAO noted that officials from ICE and the State Department acknowledged that they had enforced §1253(d) on only one occasion. On September 7, 2001, the Attorney General requested that the Secretary of State impose sanctions on Guyana for refusing or unreasonably delaying issuing travel documents for its nationals. On October 10, 2001, State discontinued granting nonimmigrant visas to employees of the government of Guyana, their spouses, and their children. Within two months, the government of Guyana issued travel documents to 112 of the 113 Guyanese aliens who had been ordered removed from the United States. On December 14, 2001, the State Department lifted the visa sanction against Guyana. This example proves that the law does work when applied.

In 2011, then Secretary of the Department of Homeland Security Janet Napolitano was asked during a hearing whether she had invoked §1253(d) and directed the State Department to stop issuing visas to countries refusing to take back their nationals. Her response: "Not that I'm aware of."27 The requirement that the State Department stop issuing visas to countries that refuse to take back their nationals is clearly under-enforced. The result is the release of thousands of criminal aliens into the United States.

Conclusion

Congress and the White House should do everything in their power to protect legal residents from criminal aliens who do not belong in the country. This should start with the goal of ensuring that such individuals never enter the country in the first place, which would require a serious commitment to immigration enforcement. If this fails and an immigrant, legal or illegal, commits a crime the government should do everything it its power to return the alien home and avoid releasing the individual back into the United States. It is clear that the Obama administration has not taken all steps required by law to prevent the release of dangerous aliens into our neighborhoods. The failure of DHS and the State Department to follow 8 U.S.C. § 1253 is inexcusable and may ultimately result in harm to legal residents.

The fallout from the Supreme Court's decision in Zadvydas v. Davis requires Congress and the executive branch to assert their inherent authority over immigration regulation and make public safety a priority.


End Notes

1 Caroline May, "ICE Edits Statement to Release of 36,007 Criminal Immigrants", Breitbart News, May 15, 2014. http://www.breitbart.com/Big-Government/2014/05/15/ICE-Updates-Response-...

2 Jon Feere, Plenary Power: Should Judges Control U.S. Immigration Policy?, Center for Immigration Studies (2009). http://www.cis.org/plenarypower.

35 Zadvydas v. Davis, 522 U.S. 678, 682 (2001); see also 8 U.S.C. § 1231(a)(6).

4 According to testimony from Gary Mead, Executive Associate Director for ICE’s Enforcement and Removal Operations, some countries take well over 90 days to issue the travel documents needed to repatriate a criminal alien; for example, on average Cuba takes 154 days, China takes 134 days, India takes 155 days, and Somalia takes 344 days. Many other countries are listed on p. 9 of Mead’s testimony, here: http://judiciary.house.gov/hearings/pdf/Mead05242011.pdf.

5 Zadvydas, 522 U.S. at 689.

6 Id. at 697.

7 Id. at 682.

8 Id. at 697.

9 Id. at 699.

10 Id. at 701.

11 Id. at 686.

12 The Immigration and Naturalization Service’s Removal of Aliens Issued Final Orders, No. I-2003-004 (Dept. of Justice, Feb. 2003). http://www.usdoj.gov/oig/reports/INS/e0304/background.htm.

13 Zadvydas, 522 U.S. at 700.

14 Id. at 701.

15 Clark v. Martinez, 543 U.S. 371 (2005).

16 Zadvydas, 522 U.S. at 702-3.

17 Id. at 704.

18 Id. at 712-13.

19 Id. at 709.

20 Id. at 705.

21 Id. at 711.

22 Id.

23 Id. at 712.

24 8 U.S.C. § 1226a.

25 Martinez, 543 U.S. 371, 386, n.8 (2005).

26 "Better Data and Controls Are Needed to Assure Consistency with the Supreme Court Decision on Long-Term Alien Detention", Government Accountability Office, May 2004. See also Jessica Vaughan, "Deportation Numbers Unwrapped", Center for Immigration Studies Backgrounder, October 2013.

27 Jon Feere, "Congresswoman: DHS Releases Dangerous Aliens, Flouts Law", Center for Immigration Studies, November 6, 2011. See also, Nicholas Ballasy, "Congresswoman takes on Napolitano: She's releasing criminal illegals on US streets and 'they're committing really horrible crimes'", Daily Caller, Nov. 4, 2011.