The Supreme Court will hear arguments Wednesday over whether immigrants facing deportation can be detained indefinitely for months or even years without a hearing, a case that could have broad implications for President-elect Donald Trump’s proposals to crack down on those entering the country illegally and to ramp up deportations.
The justices will consider the federal government’s appeal of a case brought by lawyers with the American Civil Liberties Union, representing some 1,000 immigrants in and around Los Angeles caught while crossing the border illegally or for committing crimes considered deportable. The ACLU successfully argued in lower courts that after six months of detention their clients were entitled to bail hearings in which a judge would decide if they were eligible for release pending resolution of their immigration status.
The case, Jennings v. Rodriguez, dates to 2007, when Alejandro Rodriguez, 38, launched a class-action lawsuit to challenge his indefinite incarceration that had stretched to three years without a hearing. Rodriguez, a legal permanent resident brought to the U.S. as an infant, had been convicted of a drug possession charge, and federal immigration authorities were holding him pending the outcome of deportation proceedings.
A District Court judge in Los Angeles and the 9th U.S. Circuit Court of Appeals in San Francisco sided with Rodriguez and the ACLU, and an immigration judge ultimately allowed Rodriguez to remain in the country and retain his resident status. Immigration courts have also been holding bond hearings since the District Court in Los Angeles issued an injunction to do so in 2012.
If the ACLU prevails, the Supreme Court could expand the requirement, making bond hearings mandatory nationwide. But the Department of Homeland Security maintains that there’s no requirement to hold bond hearings and that imposing one allows dangerous criminals back on the street. Government lawyers say that expanding the practice nationally would be burdensome and would violate existing law.
The case, already closely watched by immigration advocates and legal scholars, has attracted even greater attention since Trump’s election earlier this month. The Republican president-elect has said Latino immigrants to the U.S. include “criminals,” “rapists” and harbingers of “infectious diseases” deliberately sent by Mexico, and he has vowed to ramp-up deportations.
Nearly 45,000 people awaiting the outcome of deportation hearings are incarcerated each night. The past two years, in particular, have seen a surge of asylum-seekers fleeing gang violence in El Salvador, Guatemala and Honduras, causing rampant overcrowding at detention facilities that has also been fueled by a record number of deportations under the Obama administration.
A victory for the ACLU could, at least in theory, free some of those beds for the most dangerous criminals by allowing immigrants who are neither dangerous nor flight risks to go free before their next hearings. If the government prevails, however, and Trump follows through on his pledge to step up immigration enforcement and expand the number of deportations, tens of thousands more people could be exposed to potentially indefinite detentions, requiring vastly more resources or imposing an even greater strain on immigration authorities and detention centers.
“Depending how this plays out, it’s going to be even more significant given the change in administration,” says Niels Frenzen, law professor and director of the Immigration Clinic at the University of Southern California Gould School of Law. “It’s either going to facilitate the Trump administration with increasing its immigration enforcement, or it might place some limits on the Trump administration’s plans.”
Immigrants caught after they cross the border illegally and not accused of any crime generally receive bail hearings, in which immigration judges determine whether they pose a danger or flight risk. Through the first nine months of 2016, they made up about 77 percent of those going through asylum proceedings, known as the “credible fear process,” in which authorities try to determine whether immigrants have a credible fear of facing torture or other persecution if they return to their countries, the ACLU says.
The 23 percent that are denied bail hearings include immigrants caught at the border and those arrested for deportable crimes – “aggravated felonies” that span from rape and murder to lesser offenses like shoplifting and marijuana possession. The tally also includes those who deliberately present themselves to immigration authorities at the border and request asylum.
“What’s odd or a little arbitrary about the government’s detention policy or practice right now is people who cross illegally and claim asylum are getting a bond hearing, whereas people who don’t cross illegally and present themselves to officials are not getting a bond hearing,” says Michael Tan, a staff attorney with the ACLU Immigrants’ Rights Project and a counsel in the Supreme Court case. “That’s one of the more irrational features of the way the government is currently running detention.”
One green-card holder, detained after a gun charge and required to serve eight days in jail for the offense, was held another 15 months by federal immigration authorities as he fought to retain his residency, court documents say. An Ethiopian asylum seeker who presented himself at the border and said he was fleeing torture and captivity in his homeland was detained for nine months without a hearing, even though a Homeland Security officer “found he was not a danger.”
“An individualized hearing as to danger and flight risk is the most basic due process requirement for civil detention,” ACLU lawyers contend in their brief to the Supreme Court. “Prolonged incarceration constitutes a serious deprivation of liberty that will often bear little or no relationship to effectuating a removal.”
Justice Department attorneys, however, contend that not only are immigration authorities not required to provide bond hearings but doing so would break the law.
“Congress has never provided bond hearings for aliens detained at the threshold of entry to the country pending the outcome of proceedings to exclude them,” Solicitor General Donald Verrilli wrote in a May court filing. Immigrants “who are ‘not clearly and beyond a doubt entitled to be admitted’ ‘shall be detained'” for deportation proceedings, he added, and immigration judges “‘may not’ hold bond hearings for them.”
Of the 38,441 immigrants who entered the country illegally and were released during deportations between 2010 and 2014, nearly a third disappeared before their next court date, Verrilli says.
“Absconding is already a serious problem in the immigration system,” he contends. Within the 9th Circuit on the West Coast, where roughly half the detainees have posted bond since the 2012 injunction, “it is a statistical certainty, moreover, that some of those criminal aliens will abscond and that some will commit further crimes that detention would have prevented.”
The ACLU and some legal scholars argue that the Justice Department’s figures are inaccurate, and that far fewer immigrants flee than the government’s lawyers claim. About 86 percent of immigrants released from detention made their next court appearance in fiscal 2015, and the number of detainees who post bond and then abscond has fallen in the past 10 years, according to a September analysis by the Syracuse University Transactional Records Access Clearinghouse for Immigration.
The federal government’s figures, the report found, are “misleading and greatly inflated” by several factors, including a decision to exclude certain types of cases and to base the calculations on whether a former detainee showed up for the first, not the last, of multiple proceedings, an approach that therefore includes situations in which hearings had to be rescheduled because an individual didn’t receive notification or was unable to appear for another reason. The analysis called the method “quite inappropriate.”
Moreover, the office that supplied the Justice Department’s figures, the Executive Office for Immigration Review, has also been plagued by errors. The Solicitor General submitted an unusual apology to the Supreme Court in September after a Wall Street Journal investigation discovered that statistics that the Justice Department cited in another prominent immigration detention case, 2003’s Demore v. Kim, were inaccurate. In 2012, the Justice Department acknowledged that it had unintentionally misled the Supreme Court with erroneous data in yet another immigration case, Nken v. Holder, from 2009. And in a current case in Seattle, the Justice Department is contending that statistics from the same office, being wielded by the plaintiffs in that case, should not be admitted because they are unreliable.
“The issue is not how ‘serious’ the office is,” Michael Wishnie, a professor at Yale Law School, told the Wall Street Journal. “The issue is whether the Supreme Court can reasonably and fairly rely on immigration data and records provided for the first time without any opportunity for the other side to scrutinize it.”
Legal scholars declined to speculate on how the justices might rule in the Rodriguez case. The Demore case from 2003 held that Congress does have the constitutional authority to subject noncitizens to mandatory detention during deportation proceedings, but the court’s 5-4 decision also leaned on the erroneous statistics from the Justice Department, which said the detentions last an average of just four months, when in fact they often last more than a year.
In the several thousand bond hearings held since the District court’s injunction in 2012, immigration judges have determined that about 70 percent of the detainees posed neither a danger nor a flight risk. Of that group, about 70 percent was able to post bond and walk free until the next court date. In all, about half of the immigrants who have received so-called “Rodriguez hearings” have been released.
“There are people who would be less of a flight risk precisely because they want to stay in the country, because they have lawful status, because they have a job and family in the United States. All those mitigate the flight risk,” says Ingrid Eagly, a professor specializing in immigration and criminal law at the UCLA School of Law. “The argument is simply that they should be entitled to a hearing in front of a neutral magistrate. If there’s an argument that as immigrants or as individuals they present a flight risk, then those arguments should be presented in front of a judge.”