IRLI filed a brief in the U.S. Court of Appeals for the Ninth Circuit on the issue of whether the Constitution requires that criminal aliens who are in detention pending their removal hearings be given periodic bail hearings. Because these aliens have chosen their own detention, IRLI argues, they have no constitutional right to such hearings.
IRLI filed its brief in support of the United States government. The case is in the Ninth Circuit on remand from the Supreme Court, which already has decided that the aliens have no right given to them in the Immigration and Nationality Act to have such hearings, and has sent the issue of whether they have a constitutional right to such hearings back down for initial decision by the Ninth Circuit.
Plaintiffs claim that constitutional due process requires the hearings. But IRLI points out in its brief that, when it comes to removable aliens, it has long been established that due process is whatever process Congress provides – and here Congress has not provided for bail hearings. Additionally, IRLI stresses the undoubted fact that these detained aliens have chosen their own detention – they are free at all times to leave the country and contest their removability from abroad. That they prefer to be in detention, if that is the only way they have of staying in the United States until their removal hearings, does not mean that their liberty has been infringed under the Due Process Clause.
Criminal Aliens Choose Detention, Demand More Rights, August 1, 2018