By Attorneys Michael Bhotiwihok and Nancy E. Miller
In the Fall of 2017, the United States Supreme Court will rehear arguments on the constitutionality of immigrant detention presented in Jennings v. Rodriguez. (“Rodriguez”) This case raises fundamental questions about freedom and due process for detained immigrants, including includes green card holders and asylum seekers, in the United States.
Because of the issuance of the January 25, 2017 Trump Administration Executive Order on Border Security and Immigration Enforcement Improvements, the Rodriquez’ case outcome has potentially dire consequences for immigrant detainees. The end of the “catch and release” practice policy makes it more likely that immigrants – including those lawfully here – will be detained for immigration violations. With the Trump Administration’s intention to utilize detention as a tool for immigration enforcement, immigrants are also more likely to be denied a bond hearing.
A bond hearing is a basic, guaranteed principle of procedural due process which is found in the United States Constitution; however, many immigrant detainees are routinely denied this fundamental right.
Authority to set bonds for immigrant detainees is shared between the Department of Homeland Security (“DHS”) and Immigration Judges. The initial determination is whether the non-citizen is subject to mandatory detention. After DHS makes this initial custody determination, an immigrant detainee can generally renew the bond hearing request to an Immigration Judge. At both the bond hearing before DHS and that before the Immigration Judge, the immigrant detainee must show that he is not a flight risk or danger to the community to be released.
However, not all immigrants are eligible for release from detention. An immigrant detainee’s immigration status and/or criminal record may subject him to mandatory detention. The Immigration and Nationality Act requires DHS to take immigrants into custody and hold them without bond if convicted of certain removable offenses and released from jail after October 8, 1998. Mandatory detention generally applies to immigrants convicted of two crimes involving moral turpitude, an aggravated felony, a controlled substance offense, or a firearms offense. Once mandatory detention is established, the immigrant detainee remains in custody until the conclusion of his case before the Immigration Judge.
Rodriguez is a class action lawsuit that involves immigrant detainees subject to prolonged detention without a bond hearing. Rodriguez seeks to establish the procedural due process right to a bond hearing for immigrant detainees in DHS custody for six months or more.
In September 2012, the United States District Court, Central District of California issued a preliminary injunction ordering bond hearings for all mandatory detainees and detained asylum seekers who were detained for at least six months. In August 2013, the Ninth Circuit Court of Appeals made the previously issued order permanent, thereby establishing that a bond hearing be provided automatically to any detainee held in custody for more than six months
Normally, bond hearings are held immediately after a detainee is taken into DHS custody. However, immigrant detainees subject to mandatory detention have very limited eligibility for release from custody. And it is the non-citizen’s burden to prove that he is eligible for release and is not a flight risk or a danger to the community.
At a Rodriguez Bond Hearing, the burden is on DHS and not the immigrant detainee. DHS must prove by clear and convincing evidence that continuing to detain the immigrant is justified based on his risk of flight or danger to the community. Otherwise, the Immigration Judge must release the immigrant detainee on reasonable conditions of supervision.
The Obama Administration appealed the Ninth Circuit decision to the Supreme Court. In November 2016, Rodriguez was argued before the Supreme Court, months before Justice Neil Gorsuch filled the seat vacated by the death of the late Justice Antonin Scalia. The Supreme Court requested supplemental briefings after oral argument, however it decided to rehear arguments in the Fall of 2017. Justice Gorsuch could not vote on a case where he had not heard oral argument. It is suspected that the vote was evenly split between the eight justices and that the rehearing was necessary to reach a majority decision.
For immigrant detainees, the Rodriguez case is monumental because no person in the United States should be detained for prolonged periods of time without a hearing to determine if his detention is justified. An automatic bond hearing provides the detainee with the potential of release from custody and reunification with family members. Above all, Rodriguez ensures that justice is fairly applied through procedural due process to immigrant detainees.
An immigrant-detainee or family-member should consult with a knowledgeable and experienced immigration attorney to determine whether he is eligible for release from custody under Rodriguez or some other grounds.