Phu Chan Hoang v. Comfort: 10th Circuit Holds Mandatory Detention Unconstitutional

IMMIGRATION LAW & POLICY

Arrest and Detention

PHU CHAN HOANG V. COMFORT: 10TH CIRCUIT HOLDS MANDATORY DETENTION UNCONSTITUTIONAL
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

Like the Third and Ninth Circuits before it, the Tenth Circuit Court of Appeals has ruled that section 236(c) of the Immigration and Nationality Act, a mandatory detention provision enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), is unconstitutional as applied. For a discussion of the Third and Ninth Circuit cases, see "3d and 9th Circuits Hold Mandatory Detention Provision Unconstitutional," Immigrants' Rights Update, Feb. 28, 2002, p. 11.

In the case decided by the Tenth Circuit, three lawful permanent residents with aggravated felony convictions had challenged the provision in INA section 236(c) which requires that non-U.S. citizens with such criminal convictions be detained by the Immigration and Naturalization Service until they are removed from the United States. The government argued that the immigrants had forfeited any rights to remain in the U.S. and that any liberty interests they may have had were greatly diminished. The petitioners responded that as lawful permanent residents, they are entitled to due process rights. They argued that they have a fundamental liberty interest that may not be infringed upon by the government absent the opportunity for an individualized hearing to address whether they are a flight risk or a danger to the public.

Using the same analysis as that employed by both the Third and Ninth Circuits, the Tenth Circuit held that the detention provision implicates a fundamental liberty interest—i.e., enforcement of the provision may entail denying a person his or her fundamental right to liberty. When a provision of law implicates a fundamental right, the reviewing court must examine the government's application or enforcement of the provision with heightened scrutiny. It may uphold the government's policy on applying the provision only if, upon balancing the individual's liberty interest and the government's concerns, the court finds the government's policy to be narrowly tailored to meet a compelling need. The Tenth Circuit found that the government's asserted reasons for its policy in applying the mandatory detention provision without regard to individual detainees' particular circumstances—its concern that all detained noncitizens with past aggravated felony convictions might be flight risks and pose a danger to their communities if they were released—were not tailored narrowly enough. The court therefore struck down the provision as unconstitutional.

Phu Chan Hoang v. Comfort, Nos. 01-1136, 01-1180, and 01-1343 (10th Cir., Mar. 5, 2002).