//  10/1/19  //  Commentary

In a previous post, I wrote about DHS’s proposed regulation that would free the Department from the Flores settlement agreement. Specifically, whereas the Flores settlement agreement now requires DHS to release immigrant minors within 20 days, the government is asserting the authority to detain them indefinitely—for as long as the government needs to process their immigration claims (including asylum claims or potential removal/deportation).

My earlier post explained why DHS’s regulation is invalid, since it does not comply with or effectuate the Flores settlement agreement and consent decree.  In this post, however, I wanted to focus on how DHS’s aggressive proposal would not even have been possible but for a recently decided Supreme Court case, Jennings v. Rodriguez.

Rodriguez involved a challenge to indefinite immigration detentions without bond hearings. Specifically, the plaintiffs in Rodriguez sought to require individualized bond hearings in cases where immigrants were detained for longer than six months under one of three immigration law provisions, including Section 1225(b). Section 1225(b) is the provision that governs persons “arriving in the United States … who have not been admitted or paroled”—i.e., persons who arrive at the border without immigration papers.

The plaintiffs in Rodriguez argued that the relevant statutes required the government to provide them bond hearings if the government detained them for longer than six months in order to process their immigration claims. Bond hearings, the plaintiffs maintained, ensured that there would be individualized determinations that detention was warranted (either to ensure the immigrant showed up for immigration proceedings or for community safety concerns).

The Supreme Court rejected the plaintiffs’ claim. It also declined to address the plaintiffs’ alternative argument that the Constitution required individualized bond hearings once a detention lasted longer than six months.

In an anguished dissent, Justice Breyer tried to warn us about the implications of this ruling:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required…. The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read. the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail.

In its regulation asserting the authority to indefinitely detain minors and their families, DHS says only this:

Minors who are in expedited removal proceedings are not entitled to bond hearings; rather, DHS may parole such aliens on a case-by-case basis. See Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (holding that INA 235(b)(1) unambiguously prohibits release on bond and permits release only on parole).

DHS also rejected the idea that it was pursuing “indefinite detention” by relying on Rodriguez:

That is not ‘‘indefinite detention’’ because it has a definite end point, namely, the end of proceedings and removal itself. See Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018).

As if to rub it in, DHS even agrees with one of the arguments that the Rodriguez plaintiffs made in the course of the case. The Rodriguez plaintiffs argued that detentions that last more than six months require bond hearings because prolonged detentions often occur in cases where immigrants have meritorious claims, such as asylum claims. Processing successful asylum claims takes longer than rejecting obviously meritless claims, so immigrants with meritorious asylum claims end up being detained longer. (That also explains why they not likely to fail to appear at their subsequent immigration hearings—they have good claims and are likely to prevail.) And DHS now appears to agree: In explaining which immigrants are likely to be detained longer under its rule, DHS wrote: “For instance, aliens who have received a positive credible fear determination, and who are a flight risk or danger, may be more likely to be held throughout their asylum proceedings.”

Justice Breyer was correct that the issue in Rodriguez—whether the immigration statutes permit bond hearings—was technical, but had significant ramifications for core due process protections, such as the liberty against arbitrary deprivation. And the plaintiffs in Rodriguez were right to warn the Court about the possible implications of the government’s position, which appear to be that the government can detain whomever—children, families, etc.—for as long as it needs or wants, even if the extended detention is meant to function as a deterrent to future migration.

The next time the Court hears an immigration case, it should take more seriously the prospect that the government will pursue its theory to the max. And it should be wary to give the government that authority the next time around. (I won’t hold my breath, though.)

Rodriguez was a missed opportunity to curb the government’s expansive and excessive authority under immigration statutes. And revisiting the decision provides a reminder about the Supreme Court’s role in facilitating some of the government’s worst excesses in immigration.


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