//  3/24/17  //  Commentary

The President’s recent immigration-related executive orders have enormous consequences for one of the Supreme Court’s pending cases—Jennings v. Rodriguez. Rodriguez will address whether the government has to afford a “bond hearing” to persons who are detained for immigration-related reasons for longer than six months.

One of the first Executive Orders President Trump signed was the January 25th Order on “Border Security and Immigration Enforcement Improvements.” A month later, Department of Homeland Security Secretary John Kelly issued a memo implementing that Order.  Another early Executive Order (also signed on January 25th) addressed “Public Safety in the Interior of the United States,” and Secretary Kelly also issued a memo to implement that EO. Together, the EOs and memoranda make the Supreme Court’s pending decision in Rodriguez even more important because the administration’s policies will significantly increase the number of persons detained for immigration purposes—for two reasons.

First, the memo implementing the “Border Security” EO explicitly requires more immigration-related detentions. The memo declares that the administration’s policy will be to detain all persons arriving in the United States who are deemed inadmissible until there is a final determination on whether to remove them.  This is in contrast to the prior policy, which allowed immigration officials to exercise judgment on a “case-by-case” basis, and to “parole” persons (i.e., release them on bond) so long as the individuals were likely to appear for their immigration proceedings and did not pose a safety risk.  The Kelly memo replaces that policy and establishes a list of far more limited circumstances under which non-citizens can be released pending further immigration proceedings. 

Second, the memo implementing the “Public Safety” EO effectively declares that most removable persons are priorities for removal.  By expanding the number of people who are “priorities” for removal, the memo increases the number of people who will be subject to removal proceedings, and thus the number of people detained pending those proceedings.  The memo purports to “prioritize” removing anyone who has been convicted of any criminal offense; anyone who has been charged with a criminal offense that has not been resolved; anyone who has committed acts which constitute a chargeable offense; anyone who “in the judgment of an immigration officer, … pose[s] a risk to public safety or national security” and several other categories of persons. In other words, it “prioritizes” for removal just about everyone who might be removable.

How is this relevant to Rodriguez?  The question in Rodriguez is whether the Constitution, or the applicable immigration statutes, require the government to conduct a bond hearing for persons who are detained for immigration reasons for longer than six months.  A bond hearing is a proceeding where the government is required to justify any further detention by showing that the detainee is a flight risk, and poses a danger to the public.

Mr. Rodriguez has argued that the government must hold bond hearings after six months.  Immigration-related detentions can last for an extraordinarily long time.  Consider these facts from Rodriguez—before the court of appeals required the government to conduct bond hearings, the average length of detention for people like Mr. Rodriguez was “over 13 months, with a median of nearly one year.  Over 20% [of those persons] were incarcerated for more than 18 months, and nearly 10% for more than two years.”

Why are these time periods so long? One reason is the existing backlog, and resulting delays, in immigration courts. ICE and the Border Patrol currently detain more than 400,000 people each year.  That is many more people, and many more cases, than the 250 immigration judges in the 58 immigration courts in 29 states can handle. Estimates from June 2016 are that 496,704 immigration cases awaited resolution.

It’s not a stretch to think that the Trump administration’s policies will cause even more delays and more backlog as ICE seeks to both remove more persons, and detain more persons who are removable or inadmissible.  As ICE attempts to effectuate these policies, the number of cases pending before immigration courts will rise.  So too will the length of detentions.

Rodriguez will address whether the deficiencies in the current system require the government to offer bond hearings every six months to justify prolonged immigration-related detentions. Trump’s executive orders make that question, and the Court’s resolution of it, even more significant.  


Reinvigorating Defensive Crouch Liberal Constitutionalism Part 2: Will Clarence Thomas Save Abortion Rights?

7/19/18  //  Commentary

Would Justice Thomas really strike down federal legislation restricting abortion? We may soon find out.

Michael C. Dorf

Cornell Law School

The Doomed—And Dangerous—Demand for Refunds from Public Sector Unions

7/19/18  //  Commentary

Sending unions into bankruptcy because they mistakenly trusted the Supreme Court when it stood by Abood in 2012 (and declined to overrule it again in 2014) would be more than a blow to middle class workers; it would be a serious danger to the rule of law.

Aaron Tang

UC Davis School of Law

Prison and Jail Conditions Worsen Under the Trump Administration—Unless You Are Paul Manafort

7/18/18  //  Commentary

In the U.S. there are many “very unfair” situations involving prisons. But Trump’s policies are making prisons worse.

Helen Marie Berg

Michigan Law

Abigail DeHart

Michigan Law School