Today the United States Supreme Court hears an important case concerning the constitutionality of immigrant detention, and in particular, whether immigrants subject to lengthy detention have the opportunity for release on bond. The case, Jennings v. Rodriguez, is a class-action lawsuit that asks the Court to consider whether detained immigrants must be afforded bond hearings with the possibility of release if they have been detained for six months or more.
In general, indefinite detention without a bond hearing is not allowed under the U.S. Constitution, and it is well established that the Fifth Amendment entitles noncitizens to due process of law in deportation proceedings. Reno v. Flores, 507 U.S. 292 (1993). However, under the Supreme Court precedent of Demore v. Kim, 538 U.S. 510 (2003), among other cases, and using the plenary power doctrine, the federal government has defended its ability to detain immigrants during removal proceedings for a “limited time of duration.” Limited time of duration is undefined.
Jennings v. Rodriguez seeks to clarify this discrepancy. The lead class representative in Jennings v. Rodriguez is 38 year-old Alejandro Rodriguez. Mr. Rodriguez is a legal permanent residence who was brought to the United States as a child. He was convicted of a drug possession charge which resulted in him being placed into removal proceedings. While in proceedings he was detained for three years without a hearing. Another class participant, an asylum-seeker who suffered torture in Ethiopia, was detained for nine months without a hearing simply because his proof of identify was deemed insufficient – a Department of Homeland Security officer found that he was not a danger to society. Had this asylum-seeker been given a bond hearing before an immigrant judge this issue could have been presented and clarified, allowing his release.
These indefinite detentions are unjust and unacceptable. A bond hearing to assess a noncitizen’s potential flight risk and danger to the community is one of the most basic, fundamental due process requirements for civil detention. The argument presented in Jennings v. Rodriguez is merely calling for the opportunity to present arguments for release before an immigration judge. This minimal due process protection should be afforded to noncitizens in civil immigration detention.
A decision from the Court on this case will not be made for several months, and at the latest, by the end of June 2017. The outcome of Jennings v. Rodriguez will significantly impact President-elect Trump’s strategies and proposals for immigration.