Justices weigh case on bond hearings for alien detainees

By Jared Leung

The U.S. Supreme on October 3 heard oral arguments in the case of Jennings v. Rodriguez, a case that weighs whether non-citizens in detention should be allowed a bond hearing. The high court was presented with the following questions:

• Whether the Constitution requires that aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the U.S. if detention lasts six months..
• Whether the Constitution requires that criminal or terrorist aliens who are subject to mandatory detention under section 1226(c) must be afforded bond hearings with the possibility of release, if detention lasts six months.
• Whether the Constitution requires that, in bond hearings for aliens detained for six months under sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien's detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.

In 2007, Alejandro Garcia filed a writ of habeas corpus in the U.S. District Court for the Central District of California, challenging his prolonged detention. In 2008, others joined the lawsuit, including the named respondent, Alejandro Rodriguez, and asked the District Court for class certification, which was denied.

The 9th Circuit Court reversed and certified the class. On September 13, 2012, the District Court entered a preliminary injunction, requiring the government to provide a bond hearing for class members who had been in detention for over six months. The Government appealed. The 9th Circuit affirmed and ruled that aliens are entitled to bond hearings if they have been held for more than six months.

The Government requested certiorari. On June 20, 2016, the Supreme Court ranted certiorari. On November 30, 2016, the justices heard oral arguments, but the even eight-justice court could not reach a decision last term and scheduled the case for re-argument this past October 3, 2017, on which the high court, at full strength with nine justices with the addition of Neil Gorsuch, heard oral arguments.

The government's position is that neither an "alien" or "intending" immigrant - a person coming to the U.S. who intends (plans, hopes) to remain permanently or for an indefinite period of time and to make the U.S. his or her primary place of residence - has no constitutional l right to due process whatsoever. The intending immigrant or alien is not entitled to a bond hearing regardless of circumstances, and can always leave the U.S.

The respondent's position is that an intending immigrant has the right to have a bond hearing to argue that he or she is not a danger to society, nor a flight risk, and should not be forced to languish in jail-like detention indefinitely.

The justices raised their misgivings with the arguments of both the government and respondents.

Justice Breyer, for instance, noted that even "triple ax murderers" are automatically entitled to bail hearings, but intending immigrants are not. "That, to me, is a little odd," he said.
Justice Kagan took issue with the government's premise that aliens have no constitutional rights at all. She asked whether they could be tortured or forced into hard labor, to which the government said no. Have extracted that concession, the justice suggested indefinite detention of deportable aliens was "pretty close to that."

Justice Alito questioned the arbitrary nature of the six-month determination. Where does it say six months in the Constitution? Why is it six? Why isn't it seven? Why isn't it five? Why isn't it eight?"

Chief Justice Roberts also wondered why the duration should not be treated on a case-by-case basis through established procedures. "Why doesn't the availability of individualized relief through habeas or another procedure become more plausible to the extent you're dealing with a smaller category of cases?"

Jennings v. Rodriguez is significant because thousands of aliens who are neither a flight risk nor danger to society could languish in detention waiting for their opportunity to challenge their deportation proceeding. Without a bond hearing, many will wait for months, even years in some cases. In fact, the average detention duration of other respondents in this case was 13 months.

The Supreme Court's decision will determine whether some of these aliens in detention can wait for their days in court outside of detention centers and with their families.
It is interesting to note that the named respondent, Alejandro Rodriguez, was not someone who crossed the border and was apprehended by immigration agents. He was actually a permanent resident (someone with a green card) who was being deported because he was convicted of a drug offense and joyriding. He was held for three years prior to challenging his detention.

The high court was certainly concerned with prolonged detention of immigrants without any bond hearing due to the backlog in the immigration court system. However, many justices were not entirely comfortable with inserting an every-six-month rule for a bond hearing when there there is none in statute or in the Constitution.

We expect a decision will be issued next spring.

Jared Leung is a partner with Davis Miles McGuire Gardner. He also is a former member of the Board of Governors of the American Immigration Lawyers Association and current member of AILA's Business Immigration Committee.