Following a February 2018 Supreme Court ruling, prolonged civil detention is the law of the land. Certain immigrants held in mandatory detention — newly arrived asylum seekers and any immigrant convicted of a crime, including lawful permanent residents — generally can be held indefinitely.
In its 5-2 decision in Jennings v. Rodriguez, the court ruled that the Immigration and Nationality Act (INA) did not grant immigrant detainees periodic bond hearings as they await a verdict on their right to remain in the country. But justices did not rule on whether the absence of bond hearings violated due process guarantees under the Fifth Amendment to the U.S. Constitution.
Instead, the court sent the case back to the U.S. Court of Appeals for the Ninth Circuit to rule on this open constitutional question. In November, the Ninth Circuit expressed “grave doubts” on the constitutionality of withholding bond hearings, and sent the case back to the district court to consider the issue.
Lawful Permanent Resident Held for Three Years without Reprieve
The case originated with Alejandro Rodriguez, a 41-year-old Mexican immigrant and lawful permanent resident (LPR, or green card holder) of California, who had lived in the U.S. since he was an infant. His family — including his parents, siblings, and three children — also live in the country as citizens or LPRs. As an adult, Rodriguez worked as a dental assistant to support his children. After a conviction for drug possession in 2003, when he was 25 years old, which followed an earlier conviction for joyriding, Rodriguez was subjected to removal proceedings that would have him deported to Mexico. He was held in immigration detention for three years without a hearing.
At that point, Rodriguez contested his long-term confinement by bringing this class-action lawsuit, then called Rodriguez v. Robbins, to challenge the practice of detention without bond on both statutory and constitutional grounds. The Ninth Circuit agreed in 2015, holding that all immigrants held under mandatory detention were entitled to automatic, individualized bond hearings after six months of detention. This impacted thousands of detainees across the Ninth Circuit who could now petition for release on bond.
The Ninth Circuit had concluded that detention extending beyond six months becomes “constitutionally suspect.” Interpreting the INA in a manner that would avoid a future constitutional challenge, the Ninth Circuit held that the statute implicitly provided for bond hearings in cases of prolonged detention.
Under the standard set in this ruling, detainees were eligible for bond if Immigration and Customs Enforcement (ICE) could not show clear and convincing evidence that a detainee posed a flight or security risk. After the Ninth Circuit’s 2015 decision, 70 percent of detainees were found eligible for bond. Six other circuit courts concluded that prolonged detention without a bond hearing raised serious due process concerns.
The Supreme Court’s February 2018 Jennings v. Rodriguez ruling effectively overturned the Ninth Circuit’s 2015 holding. Immigrants held in mandatory detention are no longer eligible for bond, which affects tens of thousands of immigrants held in detention centers across the country.
Congress Created Mandatory Detention
Mandatory immigrant detention is a creation of Congress. In 1996, lawmakers passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which expanded the definition of what is known as an aggravated felony and exponentially increased the use of mandatory detention, with limited opportunities for judicial review.
Under IIRIRA, all noncitizens — including asylum seekers and lawful permanent residents — are subject to mandatory detention and placed in expedited removal proceedings if they are convicted of an aggravated felony: any crime of violence, theft, or burglary for which the term of imprisonment is at least one year, as well as illegal trafficking in drugs, firearms, or destructive devices.
Constitutional Question Lingers
Although the Supreme Court decided the statutory issue in Jennings v. Rodriguez, the lower federal courts will now rule on whether the due process clause of the Fifth Amendment provides detainees a constitutional right to periodic bond hearings. Because the Supreme Court did not decide this question, instead solely grounding its ruling in its interpretation of the INA, the federal district court and/or the Ninth Circuit could yet find a constitutional basis for requiring periodic bond hearings.
The argument against a constitutional right is that immigrants subject to mandatory detention have limited due process rights. For example, proponents of mandatory detention may interpret the law to treat arriving immigrants as never having entered the country and thus not eligible to receive the full protections of the Bill of Rights.
This argument is not without its critics, however. Associate Justice Stephen Breyer disputed this assumption in his dissenting opinion in Jennings v. Rodriguez, calling it a legal fiction: “We need simply remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation.” As Breyer noted in his dissent, noncitizens possess basic constitutional rights that limit governmental mistreatment. Pointing to these obvious limits on governmental conduct, Breyer asked rhetorically, “[W]ould the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” Under Breyer’s reading, fundamental due process rights clearly apply to citizens and noncitizens alike. Whether such a constitutional right exists — the right to an immigration bond hearing for those in prolonged detention — is the question now before the California federal district court where the case originated.
Indefinite Immigrant Detention Rises
Given the growing number of immigrants held in long-term detention in the United States, the upcoming rulings on these constitutional issues are increasingly important. Twenty-five years ago, around 5,500 immigrants were held in mandatory detention on any given day. Today, that number has jumped nearly six fold to 33,000 daily, and more than 429,000 immigrants are detained each year.
This evolution is not the result of an increase in criminal convictions, but rather a shift in policy toward the criminalization of immigration offenses over the last two decades. With taxpayers spending billions each year on the detention of immigrants, most of whom pose no threat to community safety, the reinstitution of immigrant bond hearings for those who do not pose a flight risk or a threat to public safety would be a valuable alternative to detention. As a result of the Supreme Court’s decision in Jennings v. Rodriguez, detention levels only continue to rise, and detainees’ due process rights are limited.
Lower courts within the Ninth Circuit now have the opportunity to answer the constitutional question as it applies to the government’s power to hold immigration law violators indefinitely. The courts could determine that the Fifth Amendment indeed does require periodic bond hearings for those in immigration custody, with the Ninth Circuit’s 2015 and 2018 rulings suggest that such a decision may be likely. That said, a ruling that immigrant bond hearings are required under the U.S. Constitution almost certainly would be appealed back up to the Supreme Court, where it may face a skeptical audience.
There could be a different solution from the other branches of government: Congress and the administration have the opportunity to change the law to move away from mandatory detention. Whether the lower federal courts (and possibly the Supreme Court on a future appeal) determine that immigrants in long-term detention have a constitutional right to periodic bond hearings or not, the other branches can take action. For example, Congress explicitly could provide for bond hearings and/or reform mandatory detention requirements to permit the use of other alternatives to detention for those who do not pose a flight risk or a threat to public safety.
Absent congressional action, the number of people held in mandatory immigration detention is likely to continue to rise — at least until the courts address this constitutional question.
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 The Ninth Circuit will also rule on whether a group of detained immigrants should be recognized as a class in Jennings v. Rodriguez under the Federal Rules of Civil Procedure. Class treatment is significant because it allows the detainees to seek remedies collectively. Because most detained immigrants do not have access to a lawyer, the opportunity to bring legal action against the federal government as a class is far preferable to individual litigants than requiring them to file individual habeas corpus petitions while in detention.
The National Immigration Forum would like to thank Rachel Shaheen, policy intern, for her extensive contributions to this post.