Did the Ninth Circuit err in deciding that non-citizens who are subject to mandatory detention while seeking admission to the United States must be granted bond hearings at six month intervals throughout their detention and are entitled to release unless the government meets its burden by demonstrating that the alien is a flight risk or a danger to the community?
[UPDATE] The Supreme Court heard oral argument for this case and requested additional briefing. The Court received the requested briefing and re-set the case for additional argument during the 2017-2018 term.
In this case, the Supreme Court will determine whether immigrants to the United States, who are being detained under civil immigration detention statutes, must be brought before an immigration judge for a bond hearing at six month intervals throughout their detention and whether the immigration judge must consider alternatives to a detained immigrant’s prolonged detention if the government fails to show through clear and convincing evidence that the immigrant is a flight risk or danger to the community. David Jennings et al. argue that statutory language and congressional intent prohibit immigration judges from releasing non-citizens detained under the civil immigration detention statutes on bond. Meanwhile, Alejandro Rodriguez et al. argue that Congress did not authorize prolonged detention through the immigration statutes and that without periodic bond hearings or the government’s justification of continued detention, individuals would be needlessly deprived of their liberty. The Supreme Court’s decision in this case will impact detained non-citizen’s constitutional rights and their ability to exercise their legal rights during removal proceedings.
Questions as Framed for the Court by the Parties
Under 8 U.S.C. 1225(b), inadmissible aliens who arrive at our Nation’s borders must be detained, without a bond hearing, during proceedings to remove them from the country. Under 8 U.S.C. 1226(c), certain criminal and terrorist aliens must be detained, without a bond hearing, during removal proceedings. Under 8 U.S.C. 1226(a), other aliens may be released on bond during their removal proceedings, if the alien demonstrates that he is not a flight risk or a danger to the community. 8 C.F.R. 236.1(c)(8). Aliens detained under Section 1226(a) may receive additional bond hearings if circumstances have changed materially. 8 C.F.R. 1003.19(e).
- Whether aliens seeking admission to the United States who are subject to mandatory detention under Section 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months
- Whether 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, 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.
Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdikadir, Abel Perez Ruelas, and Efren Orozco are all non-citizens who sued in a class action challenging their prolonged detentions without individualized bond hearings or re-evaluations of the reasons for their continued detention under civil immigration detention statutes. This case began with Alejandro Garcia’s decision to file a petition for a writ of habeas corpus on May 16, 2007. Garcia’s case was consolidated with Alejandro Rodriguez’s case, which involved a similar issue: “whether detention for more than six months without a bond hearing raises serious constitutional concerns.” Initially, the district court denied Rodriguez’s motion for class certification, which a three-judge panel of the Ninth Circuit Court reversed because there were sufficient individuals in the class, each class member’s claim involved a common issue, and Rodriguez adequately represented the concerns of all the individuals in the class.
This is the court’s most recent examination of civil detention as it relates to immigration. As noted by the court, “thousands of immigrants to the United States are locked up at any given time, awaiting the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country.” Recent research shows that U.S. Immigration and Customs Enforcement detains approximately 429,000 immigrants in a year. An estimated 33,000 non-citizens are in detention at one time. The court identified the class in this case as “non-citizens who are detained ‘pending completion of removal proceedings.’” Therefore, the class does not include suspected terrorists or detainees awaiting a final order of removal.
In addition to reversing the district court’s denial of class certification, the three-judge panel of the Ninth Circuit Court affirmed the district court’s entry of a preliminary injunction. Afterwards, the district court entered a permanent injunction. This permanent injunction requires the government to provide a bond hearing to individuals who are subject to prolonged detention, which is defined as six or more months. To justify the denial of bond, the government must prove “by clear and convincing evidence that the detainee is a flight risk or a danger to the community.”
David Jennings, in his official capacity as the Field Office Director of the Los Angeles District of Immigration and Customs Enforcement (“ICE”), appealed the court’s interpretation of the statutes on behalf of the government. The United States Court of Appeals for the Ninth Circuit held that the government must hold bond hearings for certain detained individuals as a minimal procedural safeguard to ensure that the government has a continued interest in depriving individuals of their liberty. Therefore, immigration judges must provide bond hearings every six months so that the individual may challenge his or her detention as the period of confinement grows. The United States Supreme Court granted a writ of certiorari on June 20, 2016.
[UPDATE] After hearing oral argument on the case, the Supreme Court ordered and received additional briefing. The Court reset oral argument for October 3, 2017.
CAN ALIENS DETAINED UNDER § 1225(b) BE RELEASED ON BOND BY AN IMMIGRATION JUDGE?
Petitioners David Jennings et al. maintain that unless the alien seeking admission into the United States is “clearly and beyond a doubt entitled to be admitted,” the alien is statutorily prohibited from entering into the United States under § 1225(b). Moreover, Jennings adds that § 1225(b) was clear in that, unless the detained alien meets the standard, the alien “shall be detained for a proceeding” to determine the removability of said alien. Jennings argues that 1225(b) is clear in that any alien who does not meet the standard shall be removed unless the alien establishes a credible claim for asylum, at which point the alien shall be detained until such claim is resolved. Jennings adds that Congress’ repeated use of the word “shall” in § 1225(b) was meant as a requirement, not as a discretionary measure. To further support his claim, Jennings argues that Congress replaced the word “shall” with the word “may” in the only exception to 1225(b). Moreover, Jennings cites to the Supreme Court case Shaughnessy v. Mezei for the proposition that “whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Jennings explains that in Mezei, the Court unanimously upheld the detention of an alien for 21 months without a hearing or bond.
[UPDATE] Jennings argues that 1225(b) applies to aliens seeking to enter the United States because such aliens request a privilege and have no constitutional rights. Jennings also argues that in the extraordinary circumstances where 1225(b) applies to lawful permanent residents returning from abroad, such case-specific issues can be appropriately addressed in an as-applied challenge. Jennings categorizes the § 1225(b) aliens into two subsections: b(1)(B)(ii) and b(2)(A), where the (b)(1)(B)(ii) category consists of aliens arriving at a port of entry without valid documentation or seeking to enter through fraud, but who passed the credible-fear screening process and are in removal proceedings, and the b(2)(A) category consists of aliens seeking admission to the United States who have not demonstrated upon their arrival that they are clearly and beyond a doubt entitled to be admitted.
Respondents Alejandro Rodriguez et al. argue that aliens detained under the 1225(b) provisions at stake are asylum seekers who were found, by an asylum officer, to present a credible claim for asylum. Neither of the 1225(b) provisions at stake, Rodriguez adds, authorize the detention of an individual in removal proceedings; once proceedings begin, 1225(b) yields to 1226(a). Rodriguez argues that 1226(a) permits an immigration judge to decide whether the alien should be released on bond. Additionally, Rodriguez argues that the Court should not defer to agencies that would engage in unconstitutional practices. As such, Rodriguez argues that even if 1225(b) would govern, 1225(b) should still not be read as authorizing the mandatory “prolonged detention without custody hearings.”
[UPDATE] Rodriguez argues that while returning aliens have due process rights even as to their admission, the category of aliens seeking to enter the United States under § 1225(b)(1)(B)(ii), who have been found to have “a credible fear of persecution,” also have a constitutionally protected interest in their physical liberty. He explains that the procedural requirements relating to detention are not the same as procedural requirements for admission and that even plenary powers of the political branches to expel or exclude non-citizens are subject to important constitutional limitations. Rodriguez adds that these plenary powers are only powers to exclude or remove and do not include the power to incarcerate or detain non-citizens for a prolonged period. Rodriguez argues that, because these subclass members have been screened and found to have a credible fear of persecution, they are different from the vast majority of other non-citizen aliens in that they have a Congressionally afforded right to be in the United States while their asylum claims are pending. Rodriguez also points out that these subclass members do not “hold the keys to their cell” in any meaningful sense because they cannot voluntarily end their detention by returning to the countries from which they fled. Rodriguez maintains that the nation’s legal tradition has long recognized six months as a substantial period of incarceration, and the federal courts cannot impose a sentence longer than six months without a jury trial in criminal cases as well as in civil contexts, including immigration. Lastly, Rodriguez notes that, contrary to Jennings’s arguments, the availability of individualized safeguards through habeas proceedings are insufficient to protect against widespread and unjustified prolonged detention because most detainees lack the legal and linguistic resources to pursue a habeas petition.
DOES § 1226(c) PERMIT CRIMINAL ALIENS TO BE RELEASED ON BOND?
Jennings argues that the Ninth Circuit, by relying on the doctrine of constitutional avoidance, erroneously interpreted 1226(c) to entitle criminal aliens to be released on bond after half a year in detention. Jennings maintains that 1226(c) was unambiguous in its prohibition on the release of criminal aliens on bond. Jennings adds that § 1226(c) authorizes a release of a criminal alien only if it is necessary for “certain witness protection purposes” and that alien will not become a danger to others. The release of such aliens, as Jennings argues, would undermine congressional intent as to § 1226(c). Jennings explains that Congress enacted § 1226(c) because of the Immigration and Naturalization Service’s (INS) failure of controlling an ever-growing immigration crisis: an increased alien criminal activity and recidivism. Jennings maintains that § 1226(c) codifies Congress’s categorical judgment that the aliens who have committed the offenses underlined in 1226(c) pose an “undue flight risk and danger to the community.” Allowing the release of criminal aliens on bond, according to Jennings, would undermine Congress’s categorical judgment. Jennings adds that by permitting only the Secretary to release alien criminals under § 1226(c), Congress made its intent clear as to the detention without bond of alien criminals.Jennings also adds that, even if 1226(c) may not have been clear as to its purpose, there is no basis to establish that § 1226(c) requires an alien criminal to be released after six months. Jennings relies on Demore v. Kim, a case decided by the Supreme Court, to assert that it is constitutional for an alien criminal to be detained under § 1226(c) without a bond, for more than six months. Jennings adds that a criminal alien’s prolonged detention time may be necessary for the removal of the alien, regardless of that alien’s detention time. A fixed time-cap, as Jennings explains it, would be at odds with the complex litigation process, as a litigant’s own strategies, Jennings adds, could easily delay a detention by a period above a six-month cap.
[UPDATE] Jennings argues that in extraordinary cases where individual bond-release after six months of detention may be required as a matter of constitutional protection, other case-by-case proceedings in which the individual facts of a case can be considered in full detail—such as an individual habeas petition—can function as appropriate safety measures. Jennings also notes that the Second and Ninth Circuits required bond-hearings at the six-month mark as a matter of statutory interpretation, partially because there would be many cases and because case-by-case adjudications could lead to different results in similar cases. Jennings, however, maintains that most circuits have instead adopted a “flexible reasonableness” test as a matter of statutory interpretation and that no court has held that due process itself requires a rule of bond-hearings after six months.
Rodriguez argues that § 1226(c) is silent as to the length of a criminal alien’s detention and that it is also unclear whether the Section’s exceptions were otherwise meant to authorize prolonged mandatory detentions. Rodriguez, by relying on Congress’s response to Zadvydas v. Davis in the Patriot Act, maintains that if Congress had intended to authorize the prolonged detention of an individual, it would have explicitly stated it. Consequently, Rodriguez adds that Jennings’s reading of 1226(c) would render the Patriot Act superfluous, as the Patriot Act explicitly authorizes such prolonged detention. Additionally, Rodriguez argues that the legislative history does not support Jennings’s Congressional intent argument; at no point did Congress intend to authorize prolonged mandatory detention under 1226(c). Rodriguez argues that the Supreme Court’s precedent emphasizes the application of bright-line rules, which, in this case, would be the use of a six-month detention cap. More importantly, Rodriguez argues that Zadvydas’s six-month cap has been applied in other contexts as a “useful benchmark.” Rodriguez maintains that the Ninth Circuit merely required a hearing for a criminal alien after six months, and not release itself. Rodriguez criticizes Jennings’s data on recidivism and risk to society for being severely outdated.
[UPDATE] Citing Morrissey v. Brewer, Rodriguez argues that the Supreme Court has often required hearings as a matter of due process protection for interests far less weighty than a prolonged physical confinement, requiring due process even for mere property deprivations. . Rodriguez asserts that this common-sense principle also applies to immigration detention, per Zadvydas. Rodriguez also argues against Jennings’s characterization and interpretation of Demore. Rodriguez maintains that Demore is not applicable to the vast majority of the mandatory subclass members in this case because most of them are litigating substantive defenses, whereas the individuals with qualifying convictions whose brief mandatory detentions were upheld in Demore had conceded their deportability, making entry of a removal order virtually inevitable. Further, Rodriguez notes that Demore was only distinguished from Zadvydas based on the fact that the detention at issue was “brief.”
DID THE COURT OF APPEALS ERR IN REWRITING THE PROCEDURES THAT GOVERN BOND HEARINGS?
Jennings argues that the Ninth Circuit erred in requiring that aliens receive a bond hearing by (1) putting the burden of proof on the government while requiring a “clear and convincing evidence” that the alien is a danger; (2) requiring automatic bond hearings every six months, even if the alien’s case has not materially changed; and (3) requiring judges to consider the alien’s length of detention time as a factor. On the first point, Jennings maintains that in § 1226(c) Congress clearly indicated, in the only instance where the criminal alien could be released on bond, under a witness protection program, “the alien must demonstrate that he will not pose a danger or flight risk.” Such shift of burden, according to Jennings, would also contravene § 1225(b)’s “clearly and beyond a reasonable doubt” standard. Jennings also adds that such shift would allow a criminal alien to profit from information asymmetry by withholding critical information from immigration. Additionally, Jennings adds that the Board of Immigration Appeals’ decisions and regulations go against the Ninth Circuit’s shift of burden. On the second point, Jennings maintains that an alien can appeal a bond decision to the BIA, and if that fails, obtain a rehearing by demonstrating that there has been a material change of circumstances regarding her case; there is no basis for a different procedure. On the third and last point, Jennings argues that bond determinations are made on the alien’s likelihood of causing harm to society, not on the length of his detention. Jennings argues that considering the alien’s length of detention encourages aliens to pursue time-consuming litigation strategies.
Rodriguez argues that the Ninth Circuit correctly applied its bond-hearing standard. First, Rodriguez maintains that, because of the significance of detaining an individual, the government must demonstrate why such detention was justified. Whenever the Supreme Court has permitted detention, Rodriguez maintains, the Court has required the government to bear the burden of proof. Rodriguez further argues that unlike the detained aliens, the government has in its service experienced attorneys who are familiar with the procedures. Placing a blanket ban on all detained aliens, Rodriguez adds, is especially unjustified where the government has many effective alternatives to detention. Such reading, Rodriguez argues, is supported by Zadvydas. Second, Rodriguez argues that the Supreme Court’s focus of detention length in both Zadvydas and Demore supports a judge’s reliance on the alien’s length of detention as a basis for a bond hearing. Rodriguez maintains that absent periodic hearings, detainees face a “substantial risk” of being erroneously deprived of their liberty. Furthermore, Rodriguez adds that such periodic hearing impose a minimal cost on the government.
[UPDATE] Finally, Rodriguez points out that flight risk or danger to the community are the only two bases of detention and that an individual who does not pose a sufficient flight risk or danger to the community does not warrant detention.Thus, Rodriguez argues that all prolonged detentions must be reviewed with individualized bond hearings to assess the alien’s flight risk and danger to the community. Rodriguez cites Mathews v. Eldridge to argue that given the unconstitutionality of a prolonged civil (immigration) detention, the stake of private interest in avoiding prolonged detention, and the risk of erroneous deprivation of liberty, due process requires that the government bear the burden of proof to prove by clear and convincing evidence that a prolonged detention is necessary.
INDIVIDUALS’ LIBERTY INTEREST VS. GOVERNMENT’S INTEREST IN PROTECTING ITS CITIZENS
Jennings cites the Court in Demore when he argues that non-citizens must be held in custody during deportation proceedings because the proceeding would be futile if the individual is released into society while his true character remains in question. Jennings quotes the Court in Demore stating, “Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons . . . be detained for the brief period necessary for their removal proceedings.” In other words, according to Jennings, the purpose of detaining immigrants arriving in or seeking admission to the United States is to ensure that the Nation’s borders are secure and effectuate the exclusion of immigrants that should be barred from entering the United States on security grounds.
[UPDATE] Eagle Forum Education and Legal Defense Fund, in support of Jennings, argues that Congress adopted the non-citizen detainment requirement due to the INS’s failure to address the increasing rate of non-citizen criminal activity. –Jennings argues that without these laws keeping immigrants in detention, immigrants can flee when the government begins efforts to remove or detain them. Twenty-nine U.S. Representatives, in support of Jennings, argue that because the Government’s interest in ensuring that non-citizens do not flee remains strong and the likelihood that a non-citizen will flee increases over time as the date of a final removal approaches, the procedural protections for non-citizens detained longer than six months should not be increased. The twenty-nine U.S. Representatives argue that favoring non-citizens’ liberty interests by increasing procedural protections as the length of the detention increases incentivizes non-citizens to delay removal proceedings in order to “outwait the Government and win their freedom.”
The National Association of Criminal Defense Lawyers et al. (“NACDL”), in support of Rodriguez, argues that the government’s power to take an individual’s liberty must be limited by procedural protections that ensure that the individual’s detention continues to be in the government’s interest. The NACDL argues that detaining non-citizens for a prolonged period of time is not necessary to meet the government’s interest in protecting its citizens from danger and preventing flight risk. Forty-three social science researchers and professors, also in support of Rodriguez, further this argument by summarizing research on the results of individualized bond hearings for detained immigrants which shows that detainees released on bond appear for their hearings and do not pose high safety risks. According to the social science researchers and professors, prolonged detention does, however, negatively impact society through the high costs of accommodating an extraordinary number of detainees. Furthermore, the social science researchers and professors argue that prolonged detention has significant negative impacts on detained non-citizens including severe physical, psychological, and economic consequences.
[UPDATE] Americans for Immigrant Justice, also in support of Rodriguez, argue that the modern immigration detention system imposes severe restraints on non-citizens’ liberties because ninety percent of detention centers are run by private prison corporations or county correctional departments, where non-citizens may be held with individuals charged or convicted of a crime. – Professors Stephen H. Legomsky and Stephen Yale-Loehr, in support of Rodriguez, add that non-citizens who are convicted of qualifying crimes under 1226(c), including some misdemeanors, are subject to mandatory detention with narrow circumstances for conditional release. – Moreover, the professors argue that for all non-citizen detainees, statutes are typically “silent on the length of detention, parole or review of detention is discretionary or infrequent, and for many detainees there is no explicit provision for a bond or equivalent hearing.” Human Rights First adds that ICE contributes to unnecessary and prolonged detentions by making arbitrary parole determinations “based upon impermissible and non-individualized factors, or without explanation.” Human Rights First explains that parole is often denied even in cases where the non-citizen satisfies the lack of flight risk criteria, such as having strong community and family ties. For these reasons, the States of California, Massachusetts, New York, Oregon, Rhode Island, Vermont, and Washington claim that the Government’s argument that considerations of public safety and orderly legal procedure outweigh those of non-citizens’ personal liberty is unconvincing.
CHALLENGES TO DETAINED NON-CITIZENS’ ABILITY TO EXERCISE THEIR LEGAL RIGHTS
Jennings argues that the one size fits all approach of the six month limitation for periodic bond hearings imposed by the court is not appropriate for immigration cases which are complex and widely varying. Jennings contends that the complexity of removal proceedings makes the application of a fixed six-month cap unsuitable because the length of these proceedings is often unknown; nevertheless, he declares that detention for immigrants is not indefinite because removal proceedings must end. Moreover, Jennings contends that a detained non-citizen can currently bring an individual habeas corpus proceeding if she believes her detention has become unconstitutional. Jennings argues that this avenue provides due process protections to the detained immigrants without jeopardizing the Nation’s enforcement of immigration laws. Jennings argues that the Ninth Circuit’s periodic bond hearing requirement, on the other hand, would incentivize detainees to cause a delay in removal proceedings to obtain a bond hearing, regain their liberty, and then flee to avoid removal altogether. In other words, Jennings argues that this interpretation would mean the release of immigrant detainees simply because their choice in litigation strategy results in longer proceedings.
[UPDATE] Twenty-nine U.S. Representatives, in support of Jennings, similarly argue that prolonged detainment is the result of a non-citizen’s choice to appeal the decision of the immigration judge and that, otherwise, most criminal alien cases are handled quickly. The Representatives note that because non-citizens have the choice of obeying the initial ruling that would come prior to the Ninth Circuit’s six-month mark, there are no due process concerns that would warrant a periodic bond hearing requirement.
The American Bar Association (“ABA”), in support of Rodriguez, argues that the unrepresented detainee faces insurmountable hurdles navigating the unfamiliar American legal system. The ABA further contends that though immigrants are entitled to freedom from detention within a reasonable period, Congress failed to provide mechanisms for securing the immigrants’ due process protections. The ABA argues that the periodic bond-hearing requirement to determine whether an immigrant poses a danger to society or a flight risk is an adequate remedy to address the detainee’s due process rights. In fact, the NACDL, in support of Rodriguez, reasons that periodic review is important because immigrants do not have a right to appointed counsel for their removal proceedings. Furthermore, the forty-three science researchers and professors, also in support of Rodriguez, claim that many detained immigrants do not have access to counsel for immigration proceedings because they are often held in remote locations and lack the ability to seek or pay for legal help. The social science researchers and professors argue that having a lawyer is one of the most important factors in determining the outcome of immigration proceedings, “detained immigrants with counsel obtained a successful outcome in 21% of cases, ten-and-a-half times greater than the 2% rate for their pro se counterparts.” The social science researchers and professors reason that because the detainees lack the resources to build an effective defense, they often remain in detention for longer periods of time.
Original Preview by Reymond Yamine and Natalie San Juan.
- Kelcee Griffis, Justices Collect More Info In Immigrant Detention Case, Law360 (Feb. 6, 2017).
- Debra Cassens Weiss, Justice Department discloses ‘several significant errors’ in information provided for SCOTUS case, ABA Journal (Aug. 31, 2016).
- Allissa Wickham, Justices Appear Split Over Immigrant Detention Case, Law360 (Nov. 30, 2016).