Children play in a double-fenced playground area outside the T. Don Hutto Family Residential Facility in Taylor, Texas. (CNS photo/Bahram Mark Sobhani)

With all the attention given to the Supreme Court’s notice on June 26 that it will hear cases challenging President Donald Trump’s travel ban, an important development on the same day in another significant immigration case was a bit lost.

In that case, the government is appealing an order from the Ninth U.S. Circuit Court of Appeals in San Francisco that stopped it from locking up people long-term without a bond hearing while their deportation cases were decided. The appeals court ruled that the detainees were entitled to a bond hearing every six months, and that the government would have to prove by “clear and convincing evidence” that there would be a risk of flight or danger to the community if the person was released.

Right now, in much of the country, the Department of Homeland Security holds immigrants in mandatory detention on an open-ended basis if they’ve committed what the law calls an “aggravated felony.” The Ninth Circuit and a similar decision by the Second Circuit in New York changed that for nine Western states and New York, Connecticut, and Vermont.

The law of the land will be determined when the Supreme Court rules in the California case, Jennings v. Rodriguez. The court was expected to issue a decision before the term ended; instead, it will re-hear the case in the next term.

I don’t like to predict how judges will rule. But on the face of the matter, with the addition of Justice Neil Gorsuch, it’s not hard to imagine a five-four ruling to overturn the Ninth Circuit’s decision.

The impression may be that this mandatory detention applies to people caught at the border and held until there is swift and just deportation. The plight of Alejandro Rodriguez, lead plaintiff, shows there is a lot more to it. He came to the United States from Mexico as an infant and stayed, with his entire family. He became a legal permanent resident at age nine and worked as a dental assistant. Rodriguez was convicted of joyriding in a stolen vehicle when he was nineteen, and at twenty-four of misdemeanor drug possession, for which he received probation rather than jail time.  

The second conviction led federal immigration authorities to move for his deportation. He was denied a hearing to request release on bond. That’s because an immigration judge determined that his conviction for driving a stolen vehicle qualified under federal law as an “aggravated felony,” which meant there was no way he could prevail in his removal case and had to be held in mandatory detention until he was deported.

It took 1,189 days for Homeland Security to release him, and it did so only after the American Civil Liberties Union filed suit on his behalf. By the way, the defendants in the suit included Attorney General Loretta Lynch and Homeland Security Secretary Jeh Johnson—the Obama administration. Eventually, it turned out that the administration’s immigration case against Rodriguez was not so airtight: He won before the Board of Immigration Appeals.

And that’s not unusual, the Ninth Circuit noted. Those who are held in mandatory detention and persevere long enough to get a hearing “are often successful,” the court found, stating that about one-third of them prevailed. “However,” the court added,  “many detainees choose to give up meritorious claims and voluntarily leave the country instead of enduring years of immigration detention awaiting a judicial finding of their lawful status.”

Is that due process in the American way?

But the government—we’re talking about both the Obama and Trump administrations—favors mandatory detention without review. It charges that the Ninth Circuit “rewrote the law” to require that bond hearings be held every six months. The government lawyers are treating it as a tremendous imposition to have to submit meaningful evidence to justify years of incarceration.

The government—we’re talking about both the Obama and Trump administrations—favors mandatory detention without review

The Ninth Circuit drew heavily on the Supreme Court’s 2001 decision in Zadvydas v. Davis, which found that when the immigration law was “read in the light of the Constitution’s demands,” it limits detention to a period “reasonably necessary” to deport the immigrant “and does not permit indefinite detention.” That reasonable maximum period of detention was ordinarily ninety days, but could be as long as six months, the top court found. Nowadays, typical waiting times are far longer.

But the Supreme Court qualified that ruling two years later in Demore v. Kim—although that ruling, too, assumes that deportation proceedings will be relatively quick. The government has embraced Demore in the new case, and the court will likely have to revisit the two cases and sort them out.

It shouldn’t be lost that immigration courts are far more clogged with backed-up cases than they were when the earlier decisions were made, and that as a result, people spend much longer periods in jail awaiting the result of their hearings. An amicus brief filed by Republican members of Congress blamed this on the jailed immigrants, saying they extended their incarceration by pursuing their right to an appeal.

Keep in mind that the immigration judges who make the initial determination that triggers mandatory detention are, however diligent, employees of the Department of Justice and not the judicial branch. And cases would move much quicker if Congress, having toughened the laws considerably in 1996, provided the funding sorely needed to hire an adequate number of judges.

All of this reflects poorly on the United States in the international arena. Human Rights Watch highlighted that in an amicus brief arguing that extended detention without the possibility of bail violated fundamental rights under international law. It referred to observations the U.N. Committee on Human Rights published about the United States in 2014:

The Committee is concerned that under certain circumstances mandatory detention of immigrants for prolonged periods of time without regard to the individual case may raise issues under article 9 of the Covenant [the International Covenant on Civil and Political Rights, which the U.S. Senate ratified, with some exclusions, in 1992]. It is also concerned about the mandatory nature of the deportation of foreigners, without regard to elements such as the seriousness of crimes and misdemeanors committed, the length of lawful stay in the United States, health status, family ties and the fate of spouses and children staying behind, or the humanitarian situation in the country of destination.

What does the constitutional right to due process mean in America today? The Jennings decision will help to define the answer.

Paul Moses is the author, most recently, of The Italian Squad: The True Story of the Immigrant Cops Who Fought the Rise of the Mafia (NYU Press, 2023). He is a contributing writer. Twitter: @PaulBMoses.

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