- Juan Martinez at 19 years of age pleaded guilty to distribution of undisclosed controlled substance in exchange for 5 years of probation.( Lets say violation of Texas Health and Safety Code 481.113(a).)
- Juan successfully finished probation and has remained drug and crime free. He is now 29 years old, has a family children house, business etc...
Now at 29, ICE initiates removal proceedings.
ICE charges Juan with aggravated felony,INA 237(a)(2)(A)(i) which disqualifies him from eligibility for bond, for the duration of his immigration litigation.
- ICE transports Juan to a Detention Center that is more punitive than federal prison. Unlike a maximum federal prison, Juan is stuck in a large room most of the day. He has no access to outdoor recreation, no access to educational or rehabilitative programs, and his access to law library is restricted to one-three hours a day. (Law library in federal prisons is closed only during count or evening) See https://www.law.umich.edu/special/policyclearinghouse/Documents/RI%20Maximum%20Security%20Orientation%20Handbook.pdf compare with https://www.ice.gov/detention-standards/2011
By exposing Juan to conditions of confinement more restrictive than a maximum security prison, did U.S. government violate Juan's 6th Amendment right to trial, 5th Amendment right to due process before punishment, and 8th Amendment Right against cruel and unusual punishment?
"In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law."
Bell v. Wolfish, 441 U.S. 520, 535 (1979)
"A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime. 8 U.S.C. §§ 1302, 1306, 1325. The deportation hearing looks prospectively to the respondent's right to remain in this country in the future. Past conduct is relevant only insofar as it may shed light on the respondent's right to remain. See 8 U.S.C. §§ 1251, 1252(b); Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913); Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905 (1893)."
I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)