Illegal Immigrant Deportation and the Zadvydas v. Davis Ruling

Introduction

When an illegal immigrant is arrested and imprisoned for a crime committed in the United States, what happens to that immigrant after his prison sentence has been served but his home country will not take him back? This paper reviews and critiques that question, examining the governing Supreme Court precedent, its real-world consequences, and the legislative efforts undertaken to address the resulting public safety concerns.

Zadvydas v. Davis: The Supreme Court Ruling

In order to fully understand the legal problem at issue, the 2001 U.S. Supreme Court decision in Zadvydas v. Davis must be explained. The Court ruled that Kestutis Zadvydas had served his sentence, but because his home country, Cambodia, has no repatriation treaty with the United States, he had remained in custody beyond what the relevant legal statute permits. U.S. law provides that once a prison sentence is served, there is a 90-day removal period, after which the immigrant prisoner must be "removed" from incarceration. The Court ruled that the Constitution is violated when a prisoner is held past that removal period.

According to the Court, the 90-day statute "limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States," with Justice Breyer writing the majority opinion (Chicago-Kent College of Law). The bottom line established by the Court: the law "does not permit indefinite detention" (Chicago-Kent College of Law).

According to Jon Feere, writing for the Center for Immigration Studies, the Zadvydas v. Davis decision "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 immigration (Feere, 2011). Critics of the ruling argue that by limiting executive detention authority, the Court created a gap in the law that poses significant risks to public safety.

Public Safety Consequences of the Ruling

Several serious crimes have been committed by illegal immigrants who served their sentences and were subsequently released under the Zadvydas ruling. For example, Binh Thai Luc, 35, was imprisoned for robbery and had served eight years. When the United States attempted to deport him, Vietnam refused to accept him. He was therefore released in 2006 pursuant to the Zadvydas decision, but in 2012 he was charged with "slaughtering a house full of people" in San Francisco — specifically, a couple in their sixties, their two adult children, and their son's girlfriend (Fagan, 2012).

Luc is not the only example of an illegal immigrant released under this ruling who subsequently committed a violent crime. This case in particular spurred politicians to seek legislative remedies. The Inspector General of the United States has reported that "nearly 4,000 dangerous immigrants have been released into the United States each year since 2008. An untold number of these aliens have gone on to commit additional, horrific crimes" (Feere, p. 1).

Conclusion

A good question to ask in this context is: how many illegal immigrants released from prison go on to re-commit crimes? The Inspector General of the United States explains that "nearly 4,000 dangerous immigrants have been released into the United States each year since 2008. An untold number of these aliens have gone on to commit additional, horrific crimes" (Feere, p. 1). Given this evidence, it would seem that legislation should pass that prevents the release of dangerous criminals who happen to be illegal immigrants — regardless of whether their home countries are willing to accept their return. The cases of individuals such as Binh Thai Luc make clear that the current legal framework, as interpreted by the Supreme Court, leaves an unacceptable gap in the protection of American communities.