Recently, on the morning of October 3, 2017, Justice Ginsburg made an important point for mandatorily detained noncitizens: “there is something in between.”[1] Under Chapter 8 of the U.S. Code, the government must detain certain non-citizens throughout their removal proceedings. The issue being argued in Jennings v. Rodriguez is whether it is unconstitutional to detain these individuals for a prolonged amount of time without some form of bond review.[2] Many complicated factors, such as the plenary power doctrine, due process issues, and the congested immigration court system left the Supreme Court of the United States befuddled on when it is appropriate to require review for potential release. What has become clear, though, is that something must be done to correct the injustices thrust upon those placed in prolonged detention, even if it requires a new middle ground, much like that which Justice Ginsburg alluded to in her statement at reargument.

One group of non-citizens that are greatly effected by mandatory detention are convicts, as 8 U.S.C. 1226(c) orders the Department of Homeland Security must “take into custody any alien who” is convicted of certain crimes.[3] The original intention behind the provision was that it would increase the removal of dangerous criminals and improve public safety.[4] While data confirms removal rates dramatically increased since the provision was passed, the time it now takes for a detained individual to be removed from the United States also similarly increased.[5] The concern is if a non-citizen is detained under 1226(c), he or she will most likely be detained for the entire removal process, including any appeals process, and there is very limited avenues available for 1226(c) detained individuals to seek bond during this period.[6] Mandatory detainees argue this lack of opportunity to request bond is in violation of due process rights.[7] In addition, an individual review should be required no later than six months after being detained to prevent such unconstitutional detention.[8]

Previously, the Court held there are two reasons for detaining removable individuals–securing appearance at proceedings and protecting the general public.[9] But if for some reason removal is impossible, then these justifications cannot logically apply, and, therefore, a “court must ask whether the detention in question exceeds a period reasonably necessary to secure the removal.”[10] To ensure consistency throughout all removal proceedings, courts should consider anytime after six months without a significant probability of removal, to be unreasonable.[11] However, in Demore v. Kim, the Court also held that if removal remains a possibility, then the justifications for mandatory detention of non-citizen criminals remain in effect, as long as it is not indefinite.[12] Unfortunately, the Court in Demore incorrectly relied on statistics showing removal proceedings averaged no more than five months.[13]

Since then, there has been a split throughout the nation on how to deal with mandatory detainees. The Second and Ninth Circuit require detainees to obtain a bond review at least every six months.[14] This is due to the recently revealed data showing detainment can last well more than ninety days–typically lasting more than six months, and often lasting years.[15] The irreparable harm placed upon detainees is also a key issue.[16] Some mandatory detainees pose less of a threat to society and their removal proceedings were initiated for non-violent crimes.[17] Nevertheless, they are “often treated like criminals serving time,” causing them to miss important family and business events.[18]

On the other hand, the other circuits believe the case-by-case standard should remain intact, in which bond review occurs on an individual basis whenever it naturally arises in the proceedings.[19] The courts agree reasonableness must remain a key consideration, but the fact most 1226(c) detainees can be deported within the foreseeable future still makes the justifications for detention relevant.[20]

Justice Steven Breyer hit the nail on the head when he stated: “Now, that to me is a little odd, particularly when. . .we give triple ax murderers, at least people who are accused of such, bail hearings.”[21] To require immigrants, who may be of very little risk of flight or to the community no access to bond, but to automatically give bail hearings to clearly dangerous individuals, seems like a clear substantive due process violation.  This topic is particularly important due to the Trump administration’s increase in immigration enforcement and rise in ICE arrests.[22] With the now looming possibility of increased removal, it is imperative something in between is considered by the Court to ensure there is not an added amount of detainee suffering from prolonged detention. A six-month bright line rule could potentially cause chaos in the immigration system, which is already overwhelmed. In addition, to force a review every six months may cause removal proceedings to become extended even further. However, there are other options. Requiring review within a period of 12 months after the start of detention could also be deemed reasonable or exercising non-detention options, such as monitoring devices, would also provide the relief detainees are looking for, but also keep the reasoning behind detention in mind. Gathering from what the Justices asked about on October 3, it seems like a majority may be open to such a compromising option.


[1] See Transcript of Oral Argument at 9, Jennings v. Rodriguez, No. 15-1204, (argued Oct. 3, 2017), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/15-1204_m6hn.pdf [https://perma.cc/6F85-BBL6].

[2] See Rodriguez v. Robbins, 804 F.3d 1060, 1065 (9th Cir. 2015) (explaining history of prolonged detention issue).

[3] See 8 U.S.C. § 1226(c) (2012) (requiring detainment of certain criminal non-citizens and placing strict limitations on forms of release).

[4] See Gerard Savaresse, When is When?: 8 U.S.C. § 1226(c) and the Requirements of Mandatory Detention, 82 Fordham L. Rev. 285, 299 (2013) (discussing Congress’ two main reasons for enacting section 1226(c) provision).

[5] See Carl Takei et al., ACLU, Shutting Down the Profiteers: Why and How the Department of Homeland Security Should Stop Using Private Prisons 7 (2016) (showing rise from 7,475 to 32,985).

[6] See Savaresse, supra note 4, at 303-04 (explaining Joseph hearing only way for 1226(c) to obtain bond).

[7] See Rodriguez v. Robbins, 715 F.3d 1127, 1133-36 (9th Cir. 2013) (explaining non-citizen stance on prolonged detention); see also Plyler v. Doe, 457 U.S. 202, 210 (1982) (confirming non-citizens included those who are afforded due process rights in United States).

[8] See Maria Mendoza, A System in Need of Repair: The Inhumane Treatment of Detainees in the U.S. Immigration Detention System, 41 N.C. J. Int’l. Law 405, 427-28 (2016) (arguing lack of individual review not acceptable).

[9] See Zadvydas, 533 U.S. 678, 690 (2001) (holding indefinite detention raises constitutional issues but can be outweighed by other justifications).

[10] Zadvydas, 533 U.S. 678, 699 (2001).

[11] See Zadvydas, 533 U.S. at 699-701 (holding intention behind provision did not include indefinite detention). However, the holding does not require every removable detainee to be released after six months, only those who remain detained after six months since it was determined removal would no longer be possible for whatever reason. See id.

[12] See Demore, 538 U.S. 510, 527-28 (2003) (differentiating between person deemed removable but with no ability to remove against someone with ongoing removal proceedings).

[13] See Letter from Ian H. Gershengorn, Acting Solicitor Gen., Dep’t of Justice, to Hon. Scott S. Harris, Clerk, Supreme Court of the U.S. (Aug. 26, 2016) (on file with Wall Street Journal) (agreeing previous data provided to the Court incorrect).

[14] See Rodriguez, 804 F.3d at 1077.

[15] See Gershengorn, supra note 11 (clarifying new data shows longer detention of non-citizens than originally thought).

[16] See Rodriguez, 804 F.3d at 1072-73 (explaining prolonged detention causes detrimental effects on relationships with those in U.S.).

[17] See Note, “A Prison Is A Prison Is A Prison”: Mandatory Immigration Detention and the Sixth Amendment Right to Counsel, 129 Harv. L. Rev. 522, 529-30 (2015) (detailing removal for crimes such as: stealing cigarettes or jumping turnstiles).

[18] See Rodriguez, 804 F.3d at 1073 (explaining detainment does not allow for attendance at funerals or job interviews).

[19] See Reid v. Donelan, 818 F.3d 486, 496 (1st Cir. 2016) (criticizing circuits for deferring to Zadvydas for all mandatory detainees when other original system still available); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir. 2003) (comparing Zadvydas post-removal situation against those still partaking in initial removal process).

[20] See Sopo v. US AG, 825 F.3d, 1199, 1213-14 (11th Cir. 2016) (agreeing time of detention should be reasonable but defining reasonable time is difficult).

[21] See Transcript of Oral Argument at 11, Jennings v. Rodriguez, No. 15-1204, (argued Oct. 3, 2017), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/15-1204_m6hn.pdf [https://perma.cc/6F85-BBL6].

[22] See Nick Miroff, Deportations slow under Trump despite increase in arrests by ICE, Washington Post (Sept. 28, 2017), https://www.washingtonpost.com/world/national-security/deportations-fall-under-trump-despite-increase-in-arrests-by-ice/2017/09/28/1648d4ee-a3ba-11e7-8c37-e1d99ad6aa22_story.html?utm_term=.0b3cd153388a [https://perma.cc/T23A-VEXK] (describing President Trump’s plan to implement new immigration policy).

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