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Immigrants Not Entitled to Periodic Bond Hearing After Detention

On Behalf of | Mar 12, 2018 | Detention Facilities, ICE |

Although it inexplicably escaped much attention, the Supreme Court finally issued its ruling on Jennings v. Rodriguez late last month. In a 5-3 decision, the high court ruled that non-US Citizens are not entitled periodic bond hearings while being detained by the Department of Homeland Security. The impact of this ruling is momentous and will have enormous ramifications for immigrants-both legal and undocumented-who are apprehended and detained by ICE.

In its ruling, the Court was careful to distinguish its prior holding from Zadvydas v. Davis, 533 US 678 (2001), in which it ruled that an alien who has been ordered removed may not be held in detention longer than reasonably necessary to effectuate the removal. In that case, six months was determined to be a presumptively reasonable period of time in which the government should be able to remove someone. If after that time, the detained individual can demonstrate that the government is unlikely to secure removal in the reasonably foreseeable future, the government would have to either justify why further detention is warranted or release the person. It is perhaps from this case that many people believe a detained individual should be released or at least given an opportunity to see a judge after six months. However, the Court clearly distinguishes this case from Zadvydas, noting that the statutes pertaining to those ordered removed are not the same as the ones relevant to those currently in proceedings. In short, the clear language of the provisions applicable to detention for asylum and removal proceedings (1225(b)(1) and (b)(2)) unambiguously refer to detention for a finite time, ie., as long as the asylum case is under consideration, or as long as removal proceedings are in effect. In fact, the Court notes that 1226(c) is even clearer in mandating detention until proceedings are concluded. 1226(c) is the notorious provision that implements “mandatory detention” of criminal aliens, mandatory meaning mandatory, unless the individual were to qualify for a very limited exception. Nowhere in the statutory language, the Court notes, is there reference to a time threshold after which a hearing is required.

What is particularly frightening about this case is that its reach is not limited to only discrete segments of the immigrant population. It virtually applies to any immigrant-essentially anybody who is not a US Citizen-who falls under the rubric of 1225(b)(1), (b)(2), or 1226(c). In practical terms, lawful permanent residents who are determined by ICE to fall under mandatory detention could be held indefinitely as long as their cases are pending. When you consider that the courts are, in some cases, more than 2 years behind, the time spent awaiting a hearing is punitive and draconian in itself.

Fortunately, this is not the last word. The Supreme Court predicated its ruling on statutory interpretation and left open whether detainees are entitled to periodic bond hearings on constitutional grounds. In the meantime, though, immigrants charged with crimes need to be especially wary of immigration consequences. If in doubt, consult with an immigration attorney.

The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney. 

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