October 24, 2016

ABA urges Supreme Court to set ‘bright-line’ approach in immigration detention cases

CHICAGO, Oct. 24, 2016 — The American Bar Association filed an amicus brief Monday with the U.S. Supreme Court urging the justices to require in immigration cases involving prolonged detention an individualized bond hearing within six months, and reject the U.S, Department of Justice’s approach that would require each individual detainee to challenge their detention by way of a habeas petition. 

The ABA brief, filed in the highly watched Jennings v. Rodriguez case, supports the decision of the U.S. 9th Circuit Court of Appeals of a year ago that would define “prolonged” detention as six months for purposes of the Immigration and Nationality Act and the due process clause of the Fifth Amendment of the U.S. Constitution.

Three U.S. detention statutes affecting illegal immigrants are under review in the case. While federal circuits have agreed that immigrants in prolonged detention merit an individualized bond hearing, they disagree on how to determine when the detention becomes prolonged, who should bear the burden of proof in a bond hearing and what standard of proof should apply.

The ABA urged the court to affirm the use of a bright-line rule requiring periodic bond hearings while immigrants are detained under the detention statutes at issue. “Such bright-line rules ‘provide some degree of certainty’ and ‘articulate more clearly the boundaries of what is permissible’ under the Constitution,” the ABA brief said.

The brief also noted that a 5-4 high court decision in 2003 that permanent residents were not entitled to bail when in custody and appealing deportation rulings might have been based on bad information. The reasoning of the court’s opinion was based, in part, on the government’s representation of the brevity of those detentions. But in late August, the Office of the Solicitor General acknowledged that those statistics were wrong, as some immigration lawyers suspected at the time.

“In short, experience of the federal court, like that of ABA (immigration) practitioners, has confirmed that employing a case-by-case approach to test the reasonableness of immigration detention periods actually compounds, rather than resolves, due process concerns,” the brief said. “The need for consistency, certainty, and the fair administration of constitutional guarantees thus favors a bright-line rule that allows a government official to determine with confidence whether a detainee is entitled to a bond hearing.”

The amicus brief in Jennings v. Rodriquez is available here.

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