Supreme Court Decision Allows Lengthy Detention of Immigrants

Unless the Ninth Circuit asks, bond hearings after every six months of detention will be a thing of the past.


A recent Supreme Court case called Jennings v. Rodriguez dealt a blow to the rights of undocumented and other immigrants being held in U.S. detention facilities while they await a hearing and decision on their case.

Not every immigrant who is in removal (deportation) proceedings normally gets detained. (See Immigration Detention 101.) However, under a system known as “mandatory detention,” those convicted of certain crimes, or who came to the U.S. border and requested asylum, can be held in detention throughout the entire immigration court process. They aren't allowed to ask a judge to release them on bond pending the judge's decision on whether they will be removed or qualify for some sort of relief.

That's a particular problem for immigrants given the current backlogs in immigration court, such that a detained person can wait many months or years for hearings to be completed. The original plaintiff in this case, for example, named Mr. Rodriguez, was a green card holder who had been convicted of joyriding while a teenager. He was ultimately detained for more than three years while his removal proceedings dragged on, and never receiving a bond hearing.

(A bond is a payment to guarantee that the person won't abscond if released into the U.S. while immigration court proceedings are ongoing; they can ultimately get it back if they show up for all their hearings and comply with related obligations.)

Rodriguez's case was later expanded to a class-action lawsuit on behalf of detained immigrants. The lower-court decision (in the Ninth Circuit) mandated that the U.S. government give some immigrants who have been in detention for at least six months a right to at least ask an immigration judge for bond. And the court said it should continue to provide bond hearings every six months.

However, the Supreme Court rejected the Ninth Circuit court's holding. The problem the Supreme Court had was that the Ninth Circuit said that prolonged detention wasn't authorized under the section of federal law in question; overlooking the fact that the statute didn't prohibit prolonged detention, either.

The high Court thus sent the case back to the lower court to decide whether prolonged detention without a bond hearing actually violates the U.S. Constitution, separate and apart from the immigration laws.

What does this mean for immigrants in court proceedings? Immigration advocates are concerned that Immigration and Customs Enforcement (ICE) might rearrest people who were previously released on bond and place them back in detention.

However, the matter isn't over until the Ninth Circuit issues a decision on the constitutionality of indefinite detention.

Effective Date: February 27, 2018