Academic journal article Harvard Law Review

Immigration and Nationality Act - Mandatory and Prolonged Detention - Access to Bond Hearings - Jennings V. Rodriguez

Academic journal article Harvard Law Review

Immigration and Nationality Act - Mandatory and Prolonged Detention - Access to Bond Hearings - Jennings V. Rodriguez

Article excerpt

Over 350,000 individuals were placed into civil immigration detention in 2016. (1) Held in prison-like detention centers or local jails, detainees wear "orange suits, ... are shackled during visitation and court visits, ... are subject to surveillance and strip searches, [and] are referred to by number, not by name." (2) Unlike individuals awaiting criminal trial in jail, seventy-one percent of immigration detainees are required by statute to be detained without any access to a bond hearing. (3) Last Term, in Jennings v. Rodriguez, (4) the Supreme Court held that the Ninth Circuit had incorrectly used the canon of constitutional avoidance to read a six-month limit into sections of the Immigration and Nationality Act (5) (INA) that allowed for detention without the possibility of bond. (6) The Court broke from its previous practice of broadly applying the canon to the INA, choosing instead to read the statute in a strictly textualist manner. By rejecting an interpretation of the statute that would allow for regular bond hearings, the Court pushes lower courts to either reject these cases on procedural grounds or grapple with the question of constitutionality directly, thus forcing a choice between the rights of detainees and the plenary power of the political branches. Unless the courts uphold detainees' due process rights, detained immigrants will continue to endure months, or even years, of punishment while they fight to stay in the United States.

Rodriguez was a class action suit on behalf of individuals held pursuant to four statutory provisions. The first, 8 U.S.C. [section] 1225(b), applies to individuals arriving at the border who are seeking admission into the United States. Asylum seekers who establish a credible fear of persecution "shall be detained for further consideration of the application." (7) All others seeking admission who are "not clearly and beyond a doubt entitled to be admitted ... shall be detained" for removal proceedings. (8) Under the second provision, 8 U.S.C. [section] 1226(c), "[t]he Attorney General shall take into custody any [noncitizen]" present in the United States who has been convicted of certain enumerated crimes. (9) These individuals may be released "only if the Attorney General decides" it is necessary for witness-protection purposes. (10) Any other individual in removal proceedings "may be arrested and detained" under [section] 1226(a)--the third provision--and, pending removal, the Attorney General "may release the [noncitizen] on bond of at least $1,500." (11) Those denied bond may remain detained until their proceedings end. Finally, under 8 U.S.C. [section] 1231(a), individuals who have been ordered removed "shall" be detained for up to ninety days while the government effectuates their removal. (12) All of the Rodriguez class members, regardless of the statute applicable to their circumstances, were required to wait in detention while they argued their cases to stay.

Alejandro Rodriguez was one of those class members. Rodriguez is a Mexican citizen who was brought to the United States as an infant. (13) He became a lawful permanent resident in 1987. (14) The government detained Rodriguez in April 2004 (15) after he had been convicted for "joy-riding" in 1998 (16) and possession of a controlled substance in 2003. (17) An immigration judge issued a final order of removal in July 2004. (18) Rodriguez remained in detention for the next three years as he appealed the order, first to the Board of Immigration Appeals (BIA), and then to the Ninth Circuit. (19) In May 2007, as his immigration appeals continued, Rodriguez filed a habeas petition in the District Court for the Central District of California, seeking a bond hearing on whether his continued detention was justified. (20) The case was consolidated with another and, together, petitioners moved for class certification. (21)

The district court certified a class of noncitizens who had been detained for longer than six months pending removal proceedings, were not held under a national security statute, and had not been afforded a bond hearing in that time. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.