The Supreme Court heard arguments this week in what may be the most important immigration case on its docket this fall, Jennings v. Rodriguez. The case, which began as a class action filed in California, raises important questions about whether the government has the authority to categorically deny certain detained immigrants the right to have a neutral decision-maker determine their eligibility for bond.

Currently, the government detains many immigrants for prolonged periods without any opportunity to request release on bond. Alejandro Rodriguez, the lead plaintiff in the case and a lawful permanent resident who came to the United States at the age of one, was detained by immigration officials after pleading guilty in 2004 to misdemeanor possession of a controlled substance, for which he received probation. After being detained, immigration officials denied him the right to ask a judge to release him for bond, asserting that he was ineligible for bond due to his controlled substance conviction and a conviction from five years prior for joyriding. Mr. Rodriguez was detained for over three years while fighting his immigration case, without once being allowed to ask a judge for bond — despite his strong ties to the United States, including his U.S. Citizen parents and his history of employment as a dental assistant. After Mr. Rodriguez and the American Civil Liberties Union (ACLU) filed a class action lawsuit challenging his detention, Mr. Rodriguez was released from detention. He was later granted cancellation of removal, a form of relief which allowed him to remain in this country as a lawful permanent resident.

The Ninth Circuit has held that immigrants like Mr. Rodriguez, as well as asylum-seekers who turned themselves in at the border, must be given bond hearings every six months, and that the government had to justify continued detention by presenting clear and convincing evidence that an individual posed a danger to the community or a flight risk. Challenging both the periodic bond hearings and the standard by which bond should be granted, the government sought Supreme Court review, which was granted.

At oral argument this week, U.S. Solicitor General Ian Gershengorn defended mandatory detention without bond as a rational response by Congress to ensure that immigrants appear for their hearings in immigration court and prevent them from committing other crimes. Gershengorn faced tough questions from certain Justices as to whether detained immigrants have any due process right to bond hearings. “[Y]ou can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process,” Justice Kagan noted. In response, Gershengorn argued that Congress has provided sufficient due process by permitting noncitizens to hire attorneys at their own expense, use interpreters, present evidence, and appeal their cases.

When pressed by Justice Sotomayor about whether the government’s own resource problems could justify detaining immigrants for prolonged periods, the Solicitor General denied that government delays were common, pinning most of the blame on individual immigrants who ask for additional time to gather evidence needed to fight their cases. After a prompt from Justice Alito, the Solicitor General then argued that if the government does cause unreasonable delays, they should be addressed through habeas petitions filed by individual detainees, not a broad class action lawsuit that seeks a one-size-fits-all standard.  In response, Justice Kagan opined that it would “be better to set some guideposts … rather than having one [habeas] suit pop up here and one [habeas] suit pop up here and another in another place and everybody would be treated differently[.] That does not seem like a good immigration system.”

Arguing for the Respondents, Ahilan Arulanantham of the ACLU directly addressed the Solicitor General’s reliance on individual habeas petitions as a remedy. He noted that the majority of detained immigrants are unrepresented, unfamiliar with our legal system, and thus, as a practical matter, unable to file habeas petitions. He then pointed out that, due to backlogs in the federal courts, habeas petitions take many months to adjudicate, which defeats the purpose of challenging an unreasonable delay.

During the course of his argument, Arulanantham repeatedly returned to the core issue—whether the government can detain noncitizens indefinitely without a bond hearing. “[T]he most important thing to us is that” noncitizens receive “a meaningful hearing,” he emphasized. “So there has to be a way for the detainee to [explain that he] … “was not sentenced to even a day in jail, and yet [has] spent 10 months in immigration detention.” However, several Justices seemed skeptical when Arulanantham tried to ground a six-month rule for bond hearings in statutory language.

The outcome of the case was far from clear at the end of the argument. Justice Kennedy, who is widely seen as a potential swing vote because of previous positions he took in a related 2003 case on mandatory detention, remained mostly silent and did not ask any questions about due process. However, as Mr. Arulanantham stressed throughout his argument, the case has strong implications for individuals who are caught up in immigration detention system. Many individuals detained for immigration are held in conditions identical to jail, and languish in detention for months and years, even where they have very strong ties to the United States and have committed nonviolent offenses. More often than not, those who are detained without bond have families in the United States who suffer greatly when a parent, spouse, or child is detained.   However the Justices rule, they should bear in mind how their decision will affect real people.

A decision is expected sometime next year.

Photo by Packherd.