Duong v. Immigration & Naturalization Service

District Court, S.D. California
2000 U.S. Dist. LEXIS 18487, 118 F.Supp.2d 1059, 2000 WL 1610629 (2000)

ELI5:

Rule of Law:

The indefinite detention of a deportable alien pending removal violates substantive due process rights under the Fifth Amendment when there is no reasonable likelihood that the alien can be repatriated to their country of origin in the foreseeable future.

Facts:

Petitioner Loc Duong is a native of Vietnam who was legally admitted to the United States as a refugee in 1982.
In 1993, Duong pled guilty to conspiracy to commit robbery and vehicle theft, served his prison sentence, and was released.
Following parole violations, the INS took Duong into custody and initiated removal proceedings.
Although Duong was ordered removed to Vietnam, the United States had no repatriation treaty with Vietnam, and the Vietnamese government refused to issue travel documents.
Despite the inability to execute the removal order, the INS refused to release Duong.
The INS continued to detain Duong indefinitely based on the lack of travel documents, rather than a specific finding of flight risk.

Procedural Posture:

An Immigration Judge ordered the Petitioner removed from the United States to Vietnam.
Petitioner waived his right to appeal the removal order, making it final.
The INS District Director conducted two separate custody reviews and determined the Petitioner should remain in detention.
Petitioner filed an administrative appeal of the District Director's decision to the INS, which received no response.
Petitioner filed a petition for a writ of habeas corpus in the U.S. District Court challenging the constitutionality of his continued detention.

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Issue:

Does the indefinite incarceration of a deportable alien, caused by the government's inability to obtain travel documents from the alien's home country, violate the substantive and procedural due process rights guaranteed by the Fifth Amendment?

Opinions:

Majority - Judge Jones

Yes, the indefinite detention of a deportable alien violates the Fifth Amendment when deportation is not reasonably foreseeable. The Court reasoned that unlike 'excludable' aliens who are treated as never having entered the country, 'deportable' aliens who entered lawfully possess fundamental liberty interests. Applying strict scrutiny, the Court found that while the government has a regulatory interest in safety and preventing flight, indefinite detention is excessive and not narrowly tailored when the goal of deportation cannot be realized. Furthermore, the Court found the procedural mechanism for detention review unconstitutional because it relied on biased decision-makers (INS Directors) and placed an unfair burden of proof on the detainee.

Analysis:

This decision represents a significant judicial intervention into immigration enforcement prior to the Supreme Court's ruling in Zadvydas v. Davis. It establishes a critical distinction between 'excludable' aliens (who have limited rights under the 'entry fiction' doctrine) and 'deportable' aliens (who retain fundamental constitutional protections). The ruling emphasizes that the government's power to detain non-citizens is regulatory, not punitive; therefore, when the regulatory purpose—deportation—becomes impossible to achieve, the justification for detention evaporates, converting the confinement into an unconstitutional deprivation of liberty.

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