SCOTUS Ruling Means Immigrants Can Be Detained Indefinitely Without Bond Hearings

Families react to news on a Supreme Court decision blocking Obama’s immigration plan, which would have protected millions of immigrants from deportation, in front of the U.S. Supreme Court, on June 23, 2016 in Washington, DC.
Families react to news on a Supreme Court decision blocking Obama’s immigration plan, which would have protected millions of immigrants from deportation, in front of the U.S. Supreme Court, on June 23, 2016 in Washington, DC.
Image: Getty

The Supreme Court has overturned two lower federal court decisions and ruled that immigrants, including asylum seekers and those with permanent documented status, are not entitled to periodic bond hearings while under detention. This effectively means they can be detained indefinitely if the government is considering deporting them.


The lead plaintiff in the case, Jennings v. Rodriguez, is Alejandro Rodriguez, a documented permanent resident of the United States who was convicted for joyriding and a misdemeanor drug possession. After the second conviction, officials detained him for three years, without access to a bond hearing, and entered him into deportation proceedings. His case, taken on by the ACLU, expanded to include others facing months or years-long detentions: asylum seekers, legal residents who served a sentence for committed a crime (including minor offenses), and immigrants whose claim for admission is under dispute sued for the right to a hearing before a judge to evaluate whether imprisonment is warranted.

The 5-3 opinion stated: “Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country.” (Justice Kagan recused herself in November due to previous involvement with an earlier phase of the case as the Solicitor General under Obama).

Previously, the Ninth Circuit Court of Appeals ruled that detained immigrants receive periodic, individualized bond hearings to assess threat and flight risk after detention exceeds six months. However, the Obama administration fought the ruling, arguing that Congress controls immigration laws and thus the government can detain “aliens seeking admission to the United States.” The Trump administration has taken the same position. With its ruling, the Supreme Court has sent the case back to the appeals court for further consideration—meaning the landmark immigration case could again wind up at the high court.

In a sharp dissent, Justice Stephen Breyer wrote, “many members of these groups win their claims and the Government allows them to enter or to remain in the United States,” noting that two-thirds of detained asylum seekers are granted asylum and almost 40 percent of detained immigrants who have served criminal sentences are offered relief.

He characterized detention without a bond hearing as “arbitrary detention,” writing:

No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary deten­tion. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.


While the ruling is a major blow to immigrants and immigrant advocates, the ACLU plans to continue the fight. “The Trump administration is trying to expand immigration detention to record-breaking levels as part of its crackdown on immigrant communities,” Ahilan Arulanantham, the ACLU attorney arguing the case in the Supreme Court, said in a press release. “We have shown through this case that when immigrants get a fair hearing, judges often release them based on their individual circumstances. We look forward to going back to the lower courts to show that these statutes, now interpreted by the Supreme Court to require detention without any hearing, violate the Due Process Clause.”

Prachi Gupta is a senior reporter at Jezebel.


The Noble Renard

This decision is a huge blow, for those people who have been working extremely hard for years in order to fix this travesty of justice, and most importantly for those immigrants who are now going to locked up for years while they fight their cases. In the long-term, it may be a bump on the road to justice, as the Supreme Court only determined that indefinite detention without the possibility of a bond hearing isn’t illegal, but did not determine whether or not indefinite detention without a bond hearing is unconstitutional. That question—which could still produce a result ending mandatory detention—is now what the Ninth Circuit will have to address on remand.

But in the short-term, there will likely be thousands of immigrants who have been released after an immigration judge determined that they were not a danger to the community or a flight risk, who ICE may now redetain and throw back in jail for months and possibly years while they fight their cases. People who have been out on bond now for years with zero trouble may now find ICE vans swooping up to their houses in the middle of the night, now that the legal decision which allowed them to get bond has been overturned. And this will once again swell the pocketbooks of private prisons and bring suffering and pain to those who are fighting the hardest either to maintain the right to live in this country or to seek asylum and protect themselves from persecution.

The roots of this case are deep. In 1996, Congress, in a wave of anti-crime and anti-immigrant sentiment, passed the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), which created a concept called “mandatory detention,” in which the government was now required to arrest and detain certain types of immigrants that it was trying to deport.The law required them to hold these people in jail until they got a final order in their case in immigration court. This includes asylum seekers and individuals already in the country—lawfully and unlawfully—who had been convicted of basically any crime serious enough to get you deported (which is not a very high threshold). In 2003, the first challenge to this statute arrived at the Supreme Court, in a case called Demore v. Kim. The Supreme Court upheld the law, finding that because detention was typically quite short, the law did not violate the rights of immigrant detainees. However, the Court left open the possibility that prolonged detention without the right to a bond hearing may still be unconstitutional. That’s what new challenges seized on, as swelling backlogs in immigration court led to greater and greater delays, and what had often been a process that would take months became a process that would take years.

IIRIRA has now been in effect for almost 22 years. Mandatory detention has been the law of the land ever since then, and every President—Clinton, Bush, Obama, and now Trump—has fought hard to keep it. Because the law and order types think locking up immigrants is the right thing to do. Because the Great Brown Horde is a constant threat in the xenophobes’ minds. And because the profits are too good for the private prison companies. All the Rodriguez decision did, until this morning, was ensure that people at least could go in front of a judge and require the government to show that there was a reason to hold them in detention. It didn’t guarantee release. It just guaranteed a fucking bond hearing.

Today’s decision is depressing and disheartening, to the say the least. The whole community is still somewhat in shock, although unfortunately we somewhat saw it coming. My only hope now is that the Ninth Circuit acts as quickly as possible in declaring that mandatory detention without the possibility of a bond hearing is unconstitutional. And people should know that the fight is not over at all. The fight against IIRIRA and in favor of immigrants’ rights continues.