Millions of immigrants may be affected by the justices’ decision on mandatory detention.
By Rebecca Buckwalter-Poza
(Photo: Zach Gibson/Getty Images)
Lost amid last week’s star-driven headlines, from the Victoria’s Secret Fashion Show to President-elect Donald Trump’s phone call with Taiwan, a slightly less flashy set of actors — the acting solicitor general and a litigator for the American Civil Liberties Union— argued a case before the Supreme Court that could drastically affect the lives of millions of immigrants in the United States.
The case, Jennings v. Rodríguez,asks the justices to grant immigrants who are currently being subjected to indefinite detention during removal proceedings in most of the country — a period that can last years — the chance for a bond hearing after six months’ detention.
These lengthy periods of detention have enormous consequences. Separated from their families and communities, detainees are not only denied their liberty and livelihood, but often subjected to deplorable conditions, neglect, and abuse, all of which can result in serious harm, even death.
It is one of a handful of cases that have taken on special importance since November 8th. One Trump campaign proposal would have the forthcoming administration pursue the deportation of as many as 6.5 million immigrants. If the Court does not recognize a right to a bond hearing, both the number of detainees and the duration of detention will continue to grow — or, more likely, soar.
Alejandro Rodriguez, a lawful permanent resident who has resided in the U.S. since infancy, was working as a dental assistant when the Department of Homeland Security began deportation proceedings against him. Their grounds: a conviction for “joyriding” at 19 and misdemeanor drug possession at 24. Rodríguez was detained for more than three years. He was only released by Immigrations and Customs Enforcement after the ACLU turned his case into a class action in federal district court in California.
Rodríguez and the ACLU argue that these mammoth periods of detention violate the Fifth Amendment, which states, “no person shall … be deprived of life, liberty, or property, without due process of law.” Non-citizens are, of course, “persons” under the Due Process Clause.
In 2003’s Demore v. Kim, the Supreme Court upheld no-bond civil detention in cases like Rodríguez’s, but the holding in Demore rested on a number of key assumptions that recent data and developments have undermined. Thirteen years ago, Chief Justice William Rehnquist concluded:
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 Demore,the Court was relying on government briefs that cited statistics from the Executive Office of Immigration Review. These statistics showed even the relatively small percentage of cases in which immigrants appealed were resolved within months on average.
The Court’s majority noted that, in the 85 percent of cases in which this subgroup of detainees did not appeal, the proceedings lasted 47 days on average, with a median duration of 30 days, and those in which immigrants did appeal took “an average of four months” from initial stages to final resolution, with a slightly shorter median time from start to finish.
The problem is, these figures were predicated on bad data and erroneous calculations.
In August, the acting solicitor general had to issue a correction to the data on which the Court relied 13 years ago. His letter, to which a mea culpa from EOIR was appended, clarified that the average time is, in fact, “an average and median of 382 and 272 days, respectively, for the total completion time in cases where there was an appeal.”
Because the Court’s earlier ruling hinged on the justices’ understanding of the average duration of detention, this correction could be enough to prompt them to come out differently in this successor case. In particular, Justice Anthony Kennedy’s concurrence in Demore suggests these updated figures showing detainees are held for longer than the justices were led to believe could persuade the Court to revisit its previous approval of no-bond detention.
In Demore, Kennedy wrote, “since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien … could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” He cited to his own dissent in a prior case in which he wrote, “aliens are entitled to be free from detention that is arbitrary or capricious.”
Granted, changing Kennedy’s vote may not be so simple as establishing that such lengthy periods of detention are unreasonable. He added this tricky follow-on: “Were there to be an unreasonable delay ... it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.”
In other words, Kennedy acknowledged that detention becomes unreasonable at some point, but hinted that it may still be valid unless improperly motivated. Few would argue that the long periods of detention Rodríguez is challenging owe to improper motive. Rather, these periods are a result of backlogs and procedural slowdowns: de facto rather than deliberate punishment.
These figures were predicated on bad data and erroneous calculations.
Two other data points undermine the second basis for the Court’s 2003 holding: the justifiableness of Congress’ concerns about detainees’ likelihood of fleeing, and the detainees’ level of dangerousness.
In 2015, two federal courts of appeals — the Second and Ninth Circuits — began mandating bond hearings for members of this class of detainees held for more than six months. Judges found the large majority of those who received bond hearings pursuant to the Second and Ninth Circuit rulings not to be a flight risk or to pose a danger to others.
In the Ninth Circuit (composed of Alaska, Arizona, California, and Hawaii), 69 percent of detainees who received bond hearings were granted bond. Sixty-two percent of detainees who received hearings in the Second Circuit (which includes Connecticut, New York, and Vermont) received bond. The Court has elsewhere noted immigration detention regulations should be based on “reasonable presumptions.” The rate at which judges have granted bond suggests Congress’ concerns to be unjustified and unreasonable.
Moreover, the longer an immigrant (or wrongfully detained citizen) is kept in detention, the more likely it is they will eventually win their case. As Rodríguez’s brief notes, some prevail at a rate five times higher than immigrant detainees generally. This is despite the fact that immigrants who are detained are even less likely than most to be able to secure legal representation.
Unlike in criminal proceedings, there is no general right to counsel in immigration proceedings. Those who are detained, restricted in liberty and livelihood, usually cannot either access or afford private counsel. Just 14 percent of detained immigrants are represented while 66 percent of those who are not detained have representation. And, of course, immigrants who go to court with a lawyer are 14 times more likely to win their cases than those who appear solo.
The Court has elsewhere suggested that the strength of the preventing-flight rationale has an inverse relationship to the likelihood of being removed. Phrased formally, “the ... justification [of] preventing flight ... is weak or nonexistent where removal seems a remote possibility at best.”
There’s one other constitutional dimension to this case: The Eighth Amendment, more often cited for its prohibition of cruel and unusual punishment, also holds that “[e]xcessive bail shall not be required.” As a First Circuit judge noted in 1994 dissent, bail is “the first concern of an amendment that names just three subject matters.” Granted, the right to bail or, in this case, bond, isn’t absolute. But the Supreme Court has historically required more specific and compelling rationale, as with, for example, the detention of “enemy aliens … deemed ... to be dangerous” in war time.
Beyond the legal and constitutional implications, there are enormous prudential and humanitarian stakes. It costs the U.S. government more than $160 per day on average to detain these individuals. Moreover, ICE was already attempting to reopen facilities the Department of Justice effectively closed as a result of abuses and suspicious deaths to keep up with deportation rates under the Obama administration. Anything short of the Court’s recognizing a right to bond in these cases — for example, remand back to the Ninth Circuit for further proceedings — will likely exacerbate the current crisis.