The Second Circuit Court of Appeals in New York issued an important decision in July recognizing certain noncitizens’ right to a bond hearing before an immigration judge. It was a victory not only for the petitioner, a Guatemalan man seeking protection in the United States, but also will likely have a far-reaching impact on thousands of others who are detained while their claims are considered.
The case involved interpretation of the parts of the immigration law that govern detention of noncitizens and specifically, whether the government was detaining the petitioner, Mr. Deyli Noe Guerra, pursuant to its detention authority under INA 236(a) or INA 241(a). The former provision allows for a bond hearing before an immigration judge to determine whether detention is necessary to prevent flight or protect public safety, while the latter provision arguably does not. Section 236 governs detention of persons who are in proceedings to determine whether they will be removed. Section 241 governs detention during the “removal period,” after a removal order becomes “administratively final.”
The government argued that INA 241(a) applied to Mr. Guerra because he had previously been removed from the United States and then reentered the United States again, triggering the “reinstatement” of his original removal order. But, upon his reentry, Mr. Guerra expressed fear of returning home. An asylum officer determined he had a “reasonable fear” of returning to Guatemala and sent his case to immigration court for a full hearing on his claim for protection (i.e., for a “withholding-only” hearing to consider his applications for withholding of removal and relief under the Convention Against Torture [CAT]). As a result, Mr. Guerra’s immigration proceedings were ongoing, and his removal was not imminent. Recognizing this reality, the Court concluded that INA 236(a) is the “more logical source of authorization for the detention of” individuals who are pursuing their applications for protection before the immigration court.
As the Court noted, the case presented an issue of “first impression,” meaning that no circuit court previously had decided this precise issue. Yet, the detention of protection-seeking individuals in Mr. Guerra’s situation is playing out all over the country, particularly given the substantial number of Central American refugees arriving here—many of whom are mothers with their children fleeing gender-based persecution or gang violence. In an amicus brief submitted in support of Mr. Guerra, the American Immigration Council and the American Immigration Lawyers Association provided examples of cases where the government denied a bond hearing to similarly situated individuals who had fled horrific conditions in their home countries and ultimately were granted protection in the United States. The Second Circuit’s decision provides a helpful roadmap for other courts that will be asked to address this issue, and should provide guidance for the government nationwide.
But will the government change policy and follow this decision outside the Second Circuit, the only place it is mandated to follow the Court’s ruling? Unfortunately, the government does not have a strong history of changing its national policy in light of favorable bond hearing rulings in the circuit courts. In fact, its track record is pretty abysmal. Notably, in this particular case, the petitioner had won at the lower court (a federal district court in New York), however the government appealed that decision to the federal circuit court.
Given the severity of detention and the constitutional implications of depriving individuals of their most fundamental liberty interest, the government should stop trying to deny bond hearings to individuals seeking protection in the United States. There is no good reason to deprive individuals of a fair opportunity to go before an immigration judge for a neutral assessment of whether they pose flight risk or are a danger to the community.