- Published in Latest News
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.
Somewhere in this week’s issue of Philippine News is a story about a planned trip of Department of Tourism officials along with a handful of members of the House of Representatives to Iceland and Norway. The trip was ostensibly in compliance with the national government’s Gender Awareness and Development program.
What it really is, is a useless junket, one that would cost Filipino taxpayers millions of pesos. It is not just the plane fare – business class, of course! – and hotel where our tax money is wasted. The junketeers will also get a fat allowance, as well as other perks.
What’s interesting about the trip is the inclusion of the four congressmen as well as House secretariat employees who have noting to do with the country’s efforts to push tourism to the global market. It is also unclear what they have to do with gender awareness and development.
In truth, this is just one of countless examples of how our tax money goes down the drain. Billions of pesos are wasted because of the sense of entitlement of the top officials of the executive, legislative and judicial branches of government.
I wanted to exclude the judiciary, but it is well known that our judges and justices also enjoy spending money as if there was no tomorrow whenever they go on leave. They find some excuse, usually to attend some meeting of jurists in some First World countries. There, they usually discuss the latest news and information over bottles of fine wine. Such data are all available on the internet, which is where they can also meet face-to-face in real time.
They don’t take this option because they would still be stuck back home.
Judges and justices are the least guilty of wasting the people’s money, though. It is Congress and Malacanang with their power over the budget and the power to dispose of the funds that extreme abuses are committed.
During their regular breaks, one would be hard put to find a senator or congressman here in the country. The majority will be abroad, and they don’t even pretend that their trips are “in aid of legislation.”
And if you think our legislators are an abusive lot, look at how the executive branch has been burning money with trip after trip of the president, bringing along for the ride a number of civilians who have no business in those junkets.
The records are pretty clear. President Duterte has taken more foreign trips in his first year in office than his predecessor did in his entire six years in office. Further, the entourage of Mr. Duterte has always been excessively large in each of those trips.
Just take a good look at the photos of the last couple of trips that the chief executive has taken, and see who joined him. Know that each one in the entourage is given an envelope with a fistful of dollars for “personal expenses.”
Foreign trips by government officials are rarely ever absolutely necessary.
It may be argued by some that the junketeers are just doing their job. But they should know if the trip they take is essential in delivering necessary basic services to the people. Most of the time, it’s not.
There are many other ways that government officials are corrupted by the system, of course. Trips with freebies and perks are one way, but there are many others. The old favorite remains kickbacks from government contracts.
During the time of Gloria Arroyo, kickbacks rose to a heady 50 percent of the project cost. During PNoy’s time, this slid to 20 to 25 percent. It is not clear how much the going rate is now under Mr. Duterte, but do not for a minute believe that graft and corruption has been eradicated under the current regime.
The saddest part is that kickbacks used to be the territory of mid to lower level government bureaucrats. But after Ferdinand Marcos, it became clear that graft and corruption flourished at the top.
After Macoy, Cory may have been clean, but her close relatives were not. Ditto with Fidel Ramos. Then of course, Erap was both corrupt and incompetent. Arroyo took corruption to greater heights, perhaps worse than Marcos.
And PNoy whom many now miss may have been relatively clean like his mom, but he too was surrounded by “smart” officials who gave themselves ultra-hefty retirement benefits.
And now we have Digong Duterte. He may not be padding his pocket, but he is turning a blind eye to what the incompetents around him are doing.
In the Philippines circa 2017, corruption remains a way of life.