0

The CBP has the authority to conduct inspections within 100 miles of borders. This region engulfs major cities (NYC, LAX, etc.) as well as populous states like Florida. If the response to an agent's inquiry regarding citizenship is that the response indicates citizenship and there is an absence of probable cause (criminal or immigration-wise): What is the thought process to decide what is or is not a reasonable detention duration?

I would like to understand the thought process & standard so as to apply it to the Galicia detention.

It should be noted that the ACLU indicates US citizens are not required to carry proof of citizenship.

  • If I remember correctly it's different between the fifth circuit and the ninth. – phoog Sep 21 at 19:49
  • 1
    You can’t really determine what is and isn’t reasonable without all the factual circumstances – Dale M Sep 22 at 12:30
  • The short answer is, 20 minutes. ICE "detentions" are peculiar since they are more like arrests. – user6726 Oct 31 at 16:35
  • An investigation into a crime can take more than 20 minutes. – Putvi Oct 31 at 16:37
  • That is true, this is the Terry stop rule, which is one class of detentions. We can up the number to 24 hours or 48, but that depends on other details, many of which not applicable to ICE detentions. For example, the "crime" element. – user6726 Oct 31 at 16:42
0

The thought process to establish what is reasonable could differ from case to case, but generally, it is based on the conduct or suspected conduct of the detainee.

The officer may detain the defendant long enough to conduct a short investigation as long as he is justified and has reason to suspect the offense has taken place. The specific time is not always the same everywhere and for every offense.

For example, most courts have ruled that a detainee can only be held a few days (at the most) when a criminal offense is investigated.

For an investigation into the legal status of a detainee, the court process would decide the person's fate, but the length would likely be longer.

In the case you mention, the detainee was probably held too long. It shouldn't take that long to check someone's birth certificate, license, etc.

0

The recent ruling of Jennings v. Rodriguez gives some clues. Rodriguez was detained for deportation, and sued, alleging entitlement to a bond hearing. His legal team constructed a theory that there was a 6 month limit on detentions. The lower court agreed, and (as reported in the SCOTUS ruling)

Relying heavily on the canon of constitutional avoidance, the Court of Appeals construed §§1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien’s detention under these sections. Id., at 1079, 1082. After that point, the Court of Appeals held, the Government may continue to detain the alien only under the authority of §1226(a).

That principle is relevant when a statute that is found to have multiple readings. At stake are the provisions of 8 USC 1225, where

respondents argue—and the Court of Appeals held—that those provisions nevertheless can be construed to contain implicit limitations on the length of detention

specifically an implicit 6-month limit on the length of detention, and "urge[d] this Court to use that canon to read a 'six-month reasonableness limitation' into §1225(b)". SCOTUS resoundingly rejected that interpretation. It stated that

§1226(c) does not on its face limit the length of the detention it authorizes. In fact, by allowing aliens to be released “only if” the Attorney General decides that certain conditions are met, §1226(c) reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. And together with §1226(a), §1226(c) makes clear that detention of aliens within its scope must continue “pending a decision on whether the alien is to be removed from the United States.” §1226(a).

This is not quite license for indefinite detention, but it indicates that non-statutory limitation on the duration of a detention doesn't arise from the detention being unreasonable.

In a related earlier case, Zadvydas v. Davis, 533 U. S. 678 the court held that a certain statute

implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal from the United States, and does not permit indefinite detention

Duration, per se, is not the limiting feature, rather, it is "however long is reasonably necessary to remove the alien" (in the instant case, Z was essentially stateless and no country would take him, so detention is "potentially permanent").

The court also held that

The application of the 'reasonable time' limitation is subject to federal-court review

and under such review,

the court must ask whether the detention exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's purpose of assuring the alien's presence at the moment of removal.

In that version of SCOTUS, they found that

It is unlikely that Congress believed that all reasonably foreseeable removals could be accomplished in 90 days, but there is reason to believe that it doubted the constitutionality of more than six months' detention. Thus, for the sake of uniform administration in the federal courts, six months is the appropriate period. After the 6-month period, once an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must furnish evidence sufficient to rebut that showing.

A third case, Clark v. Martinez, 543 U.S. 371 reiterates that "the presumptive period during which an alien’s detention is reasonably necessary to effectuate removal is six months". However, the courts are not looking at the same statutory provision in these three cases. (I think the real reason for the difference is the different makeup of the court).

To summarize: it is an open question what constitutional limits on duration of detention exist. There is an earlier hint that 6 months might be a limit, and a later rejection of that hint (it just a hint, after all). An indefinite detention would, as stated in Zadvydas, raise serious constitutional issues, but as the most recent ruling finds, the limit might be in terms of satisfying a condition, not a period of time.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.