Immigration lawyers across the country are scrambling to find out what will happen to their clients in light of the Supreme Court's ruling this week that regular bond hearings don’t apply to undocumented immigrants.
Defendants in criminal cases typically receive a shot at bail within days of being arrested. But undocumented immigrants are held for months, sometimes years, without the same opportunity. A lower court had ruled in 2015 that immigrants required bond hearings within six months of their detention, but the Supreme Court struck down that timeframe on Tuesday and didn’t offer a replacement. Now, immigration lawyers aren’t sure how the government will enforce Tuesday’s ruling — or how much longer their clients will have to spend behind bars.
“There's disappointment and frustration,” said Jesse Lloyd, an immigration lawyer in Oakland, California. “Yesterday, we were discussing applying for bond. Today, we were told there was no chance.”
Lloyd attended a bond hearing for his client on Tuesday morning, just hours after the Supreme Court issued its ruling in the case, Jennings v. Rodriguez. The California immigration judge in the case said that she no longer had the authority to grant bond because of the Supreme Court’s ruling. Lloyd’s client will now likely be held in detention until his immigration case is resolved.
“Nobody knows, I don’t know if there’s going to be a guidance,” Lloyd said. He worries that federal immigration enforcement officers might try to detain immigrants who were released on bond under the lower court’s ruling that the Supreme Court struck down on Tuesday.
“Judges aren't going to say, ‘I want to reverse my old order from however many months ago.’ They're too busy for that. But ICE could actively try to detain these people.”
The case came to the Supreme Court following a 2015 ruling by the 9th Circuit Court of Appeals, which found that immigrants, including green card holders and asylum seekers, were eligible for bond hearings after six months of detention. Five other circuit courts — including the 2nd Circuit, which also put in place the six-month rule — have ruled similarly on the issue.
But in its 5-3 decision on Tuesday, the Supreme Court delivered a blow to defenders of due process for immigrants. “Nothing in the text of [the law] hints that those provisions have an implicit 6-month time limit on the length of detention,” Justice Samuel Alito wrote in his majority opinion.
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The decision, however, eaves some issues in the case unresolved. The justices only ruled on the 9th Circuit’s six-month timeframe for bond hearings, not on whether it’s constitutional for the government to detain immigrants indefinitely — the justices sent the case back to the 9th Circuit to decide that issue. The Supreme Court could decide to take up the case for a second time after the 9th Circuit rules again.
Michael Tan, a lawyer with the American Civil Liberties Union (ACLU) who worked on the Jennings case, said he’s looking forward to the 9th Circuit’s decision. In the meantime, he and his colleagues are trying to sort out what the decision means for immigrants.
“The risk in all of this is going back to the world like it was before we had Jennings when the government was routinely locking up asylum seekers, legal permanent residents — locking them up for years without letting them see a judge,” he said of the 9th Circuit’s 2015 decision. “That was a nightmare. Jennings worked. Thousands of people were released because of this ruling.”
The Supreme Court is also still technically considering a separate case on the same six-month rule put in place by the 2nd Circuit, and immigration lawyers are unsure about how Tuesday’s decision will apply to their clients.
“There's confusion in the courts as to what that means, we're still waiting to see what the Supreme Court does,” said Talia Peleg, a law professor at City University of New York (CUNY) Law School and immigration attorney. “There is confusion about what impact that would have on judges’ ability to conduct individualized hearings and allow for months and years of prolonged detention for non-citizens.”
In a scathing dissent, Justice Stephen Breyer said all people in the U.S., regardless of their immigration status, should be held to the same standard. “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection,” he said.
The lead plaintiff in the Jennings case is Alejandro Rodriguez, a lawful permanent resident who came to the U.S. as an infant. After being detained by the Department of Homeland Security, he spent more than three years in detention without a hearing. He missed the birth of his daughter while he fought to stay in the country.
Rodriguez’s situation is not unusual: The average wait time for immigration cases to be resolved is 708 days, up 25 percent since 2014, according to the Transactional Records Access Clearinghouse at Syracuse University.
Cover image: Foreign nationals being arrested this week during a targeted enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE) aimed at immigration fugitives, re-entrants and at-large criminal aliens in Los Angeles, on Tuesday, Feb. 7, 2017. (Charles Reed/U.S. Immigration and Customs Enforcement via AP)