Kramer Levin's late partner Marvin Frankel and Litigation associate Jennifer Rochon successfully represented Citizens and Immigrants for Equal Justice and the American Immigration Lawyers Association as amici in two ground-breaking Third Circuit cases involving the mandatory detention provisions of the 1996 amendments to the immigration laws. In Patel v. Zemski, No. 01-2398 (3d Cir. Dec. 19, 2001), and Radoncic v. Zemski, No. 01-1074 (3d Cir. Jan. 4, 2002), the Third Circuit became the first Court of Appeals in the nation to find these provisions unconstitutional because they violate the due process rights of aliens.
In 1996 Congress amended the Immigration and Nationality Act, requiring that all aliens (including legal permanent residents) who have committed enumerated crimes, including misdemeanors, be detained without bond during the pendency of their removal proceedings regardless of their individualized circumstances. Detainees immediately argued that mandatory detention without individualized determinations of risk of flight or danger to the community violated their due process rights. Although district courts throughout the nation struggled with this constitutional question, at the close of 2000 the only Circuit to have addressed the issue was the Seventh Circuit, holding the detention provisions constitutional. See Parra v. Perryman, 172 F.3d 954 (7th Cir. 1999).
The Third Circuit was confronted with the issue in Patel and Radoncic. Patel was a 55-year old legal permanent resident who had lived in the United States since 1984. He pleaded guilty to harboring an undocumented alien based on his employment of the alien and his provision of a place for the alien to live, and was thereafter taken into INS custody under the mandatory detention provisions. He was detained for 11 months before the Third Circuit held that mandatory detention of aliens who have been found potentially removable but who have not yet been ordered removed because they are pursuing their administrative remedies violates their due process rights unless they have been afforded an individualized bond hearing. The court thereafter reaffirmed this holding in Radoncic.
Mr. Frankel and Ms. Rochon filed briefs in both cases supporting the due process challenges and refuting the Seventh Circuit's assumption in Parra that most detainees are ultimately deported in any event. The issue remains pending in cases in the Fourth, Sixth, Ninth and Tenth Circuits, and they have filed parallel versions of their brief in each case.