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“Keep Our Communities Safe Act” is Dangerous and Unconstitutional

Christy Carnegie Fujio, JD, MA, and Sari Long on August 2, 2011

H.R. 1932, the deceptively-titled “Keep Our Communities Safe Act”, passed out of the House Judiciary Committee two weeks ago despite strident criticism of its sweeping provisions. The Act is a threat to the fundamental tenet of due process, to the human rights of asylum seekers, and to fiscal responsibility.

The bill, introduced by Lamar Smith (R-Texas), is touted as necessary to keep dangerous criminal immigrants off the streets. In reality, it grants unlimited power to the Department of Homeland Security (DHS) to detain noncitizens for an indefinite period of time, with no opportunity for a bond hearing. If passed, this legislation would significantly impact the most vulnerable groups seeking entrance to the US – those fleeing torture and persecution in their home countries.

For example, a Tibetan man was brutally tortured and imprisoned for a year by the Chinese authorities for putting up pro-Tibetan independence posters. He fled to the US and spent almost a year in a New Jersey detention facility before finally being granted asylum. If the Act passes, someone like him could end up in a US prison for the rest of his life – without ever having committed a crime in the US.

In recent years, the Supreme Court has issued opinions limiting the government’s authority to detain noncitizens indefinitely, but H.R. 1932 seeks to alter current regulations so that DHS would have complete discretion over whom it will detain and how long that detention should last. There are no significant procedural protections (such as the right to a hearing before a judge or to have legal counsel provided by the government) for someone facing indefinite detention. The Act eviscerates due process even for those who pose no flight risk or danger to communities. This is simply unconstitutional.

Not only does H.R. 1932 violate civil liberties and human rights for noncitizens, but it is fiscally disastrous for the US. DHS estimates that immigration detention costs more than $2 billion per year – H.R. 1932 would drive this number up, creating an even greater demand for detention space and a further strain on the prison system infrastructure.

The House must reject this dangerous and unconstitutional bill. It represents an erosion of the fundamental civil liberties at the core of the US judicial system and has potentially disastrous effects on vulnerable asylum seekers.