Immigration and Customs Enforcement (ICE) has released 2,837 convicted criminal alien sex offenders back into American communities in order to comply with a Supreme Court decision authored by Clinton-appointed Justice Stephen Breyer, according to a new report by the Government Accountability Office (GAO).
The 2,837 sex offenders represented five percent of the 59,347 deportable aliens that have been released from detention under the supervision of U.S. Immigration and Customs Enforcement (ICE), according to the GAO report, which was released Thursday.
“There are circumstances in which criminal aliens who have been ordered removed from the United States – including those convicted of a sex offense – cannot be removed,” the report states. “For example, a criminal alien may not be removed because the designated country will not accept the alien’s return.”
The GAO report refers to the 2001 Supreme Court case Zadvydas v. Davis to explain why ICE is required to release foreigners who have been convicted of sex crimes. In its 5-4 decision, the court ruled that the indefinite detention of removable aliens for greater than six months is unconstitutional unless there is “significant likelihood of removal in the reasonably foreseeable future.”
“Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause,” Associate Justice Stephen Breyer wrote in the majority opinion. Breyer was joined in this opinion by J.P. Stevens (a Gerald Ford apppointee), Sandra Day O’Connor (a Reagan appointee), Ruth Bader Ginsburg (a Clinton appointee), and David Souter (a George H.W. Bush appointee).
But writing for the minority, Justice Antonin Scalia (a Reagan appointee) said: “Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissable alien at the threshold of entry: He has no such right.”
Justice Anthony Kennedy (also a Reagan appointee) concurred, noting that “the authority to detain beyond the removal period is to protect the community, not to negotiate the aliens’ return… An alien’s admission to this country is conditioned upon compliance with our laws, and removal is the consequence of a breach of that understanding.”
Justice Clarence Thomas (a George H.W. Bush appointee) and William Rehnquist (a Nixon appointee) also dissented from Breyer’s opinion.
The GAO report also revealed that large numbers of convicted alien sex offenders that ICE did in fact manage to deport from the country simply turned around and came back in–and then committed another offense inside the United States.
“According to the data that ICE-ERO provided to us,” said the GAO report, “of 4359 alien sex offenders who were removed from the country between January and August 2012, 220 of them (5 percent) had previously been removed but subsequently returned to the United States and were arrested for another offense.”
Also, about five percent of released aliens sex offenders did not register as sex offenders in the communities where they settled as required by federal law. “The risk that alien sex offenders will reside in U.S. communities without being registered is increased,” the GAO concluded.