Justices seem to agree on immigration detention limits

OCTOBER 2017 TERM

The U.S. Supreme Court started its 2017 term last week and quickly waded into the hot-button issue of immigration. The case at issue -- Jennings v. Rodriguez -- takes up the issue of the constitutional right to an individual bond bail hearing and release for non-U.S. citizens who are subject to mandatory detention in deportation removal hearings. The court is examining the case for the second time, after an evenly divided court failed to reach a decision last term and scheduled the case for new arguments. Those arguments are now before a full court of nine justices, following the confirmation of Justice Neil Gorsuch.

Immigration detention has been a key tool of enforcement since the 1990s. The U.S. government has the authority to detain certain inadmissible, non-citizens with no bond hearing while deportation hearings are ongoing. Many non-citizens are eligible for a bond hearing very quickly -- for example, those who have not committed or been convicted of certain crimes, and/or those who are not arriving aliens (i.e., a person who applies for admission to the U.S. at a port-of-entry, as opposed to a person already in the U.S.) However, many individuals do not qualify for release at all, even if they are willing and able to pay a bond. People subject the mandatory detention are not eligible for an individual bond hearing at all, and must spend their entire court case in immigration detention facilities.

Government data shows that at least half -- and in certain years, as many as two-thirds --of individuals who enter removal proceedings are detained. While detained individuals have priority in immigration proceedings, the growing immigration backlogs over the past 20 years make prolonged detention more and more likely. In May 2007, the American Civil Liberties Union filed a class action in California challenging the government's authority to detain under mandatory detention without the opportunity for an individual bond hearing, resulting in a ruling by the 9th U.S. Circuit Court of Appeals that those subject to mandatory detention are entitled to individual bond hearings every six months. During those bond hearings, the government must demonstrate the individual is a flight risk or security risk in order to justify ongoing detention.

The U.S. Supreme Court has previously considered the ability of the U.S. to detain immigrants. In 2001, the Supreme Court held in Zadvydas v. Davis that judicial review of detention was required because "to permit[] indefinite detention of an alien would cause a serious constitutional problem. Two years later, the Supreme Court further determined in Demore v. Kim that "brief" detentions required for deportation hearings are constitutional. The U.S. Justice Department provided data for the Kim case showing the average detention length for mandatory detainees was only four months, a figure that ultimately was found to be incorrect. In August 2016, the DOJ released revised figures that the average detention period for mandatory detention was 382 days, almost four times the figure provided to the Supreme Court earlier.

Current government reports show that 90 percent of removal proceedings for those subject to mandatory detention are resolved within six months, but for those whose cases take longer, detention can be lengthy. Data collected by the ACLU for the 9th Circuit found that on average, those whose cases are not timely resoled spend over 400 days in detention -- a figure similar to the DOJ's revised data -- and that a significant percentage of detainees (between 30 to 65 percent, depending on the relief sought) were ultimately successful in winning their case. According to Immigration and Customs Enforcement, the cost of detention is $119 per person per day, which means the U.S. spends millions of dollars to detain individuals, many of whom are ultimately released after successful conclusion of their proceedings.

During oral arguments for Jennings on Oct. 3, U.S. government attorneys argued that detainees should utilize individual habeas corpus petitions to seek release, rather than implementing a hard deadline for court review of ongoing detention. Attorney Ahilan Arulanantham of the ACLU argued that the six-month review standard creates a simple mechanism to ensure constitutional protections are met for non-citizens who may lack the legal resources or legal knowledge to file habeas petitions.

Questioning during oral arguments last week evidenced the split between the court's liberal and conservative justices. The more liberal members focused on the constitutionality of indefinite detention, questioning why those in immigration proceedings were treated differently than criminal defendants. Justice Stephen Breyer asked why this group of individuals could not expect to have their detention reviewed by a judge, when "triple ax murderers" are given bond hearings early in their court proceedings. Justine Sonia Sotomayor also identified the inconsistency applied to immigration hearings, questioning as to "what other area of law have we permitted a government agent on his or her own, without a neutral party looking at the decision, to detain someone indefinitely?" Justice Elena Kagan, in true law professor fashion, posited a number of hypotheticals challenging the U.S. government position that arriving aliens have no constitutional rights, arguing that if the government cannot torture or subject arriving aliens to forced labor, it also cannot impose indefinite detention.

Conservative members focused on the constitutionality of establishing a bright line rule for detention review. As noted by Justice Samuel Alito, "Where does it say six months in the Constitution? Why isn't it seven? Why isn't it eight?" Justice John Roberts also gave credence to this argument, acknowledging that constitutional concerns increase with the length of detention, but questioning the six month time limit. The conservative bloc also appeared to be swayed by government arguments that it is the non-citizen's "choice to trigger further delay" by fighting their removal from the U.S., rather than conceding removal and acquiescing to deportation.

The justices seem to agree that there are constitutional limits on detention, but disagree on the means and mechanisms for review. Whatever the outcome, its impact will be felt by thousands of individuals currently in detention, and could impact potentially thousands more who are caught up in the increased interior enforcement activities under President Donald Trump.