Bond Hearings After 6 Months of Mandatory Detention in Second and Ninth Circuits

On October 28, 2015, the Second and Ninth Circuit Courts of Appeal issued critical rulings affirming the procedural rights of noncitizens subject to mandatory immigration detention.  In Rodriguez v. Robbins, No. 13-56706, the Ninth Circuit affirmed significant portions of the Central District of California’s rulings in a class-action lawsuit on behalf of immigrant detainees subject to prolonged detention without individual bond hearings.  Specifically, the Ninth Circuit held that immigrant detainees subject to mandatory detention due certain prior convictions, as well as asylum seekers, are entitled to bond hearings after six months of immigration detention.  Furthermore, the Ninth Circuit found that the government must continue to provide periodic bond hearings every six months in cases involving prolonged detention, and that immigration judges should consider the length of detention in determining whether continued detention is permissible.  That same day, the Second Circuit in Lora v. Shanahan, No. 14-2343, found, in the context of an appeal of a habeas petition, that the mandatory detention statute applicable to noncitizens with prior convictions does not permit detention longer than six months without an individualized bond hearing, citing an earlier Ninth Circuit opinion in Rodriguez v. Robbins.  

For further analysis, check out Alina Das’s analysis of Lora v. Shanahan at crimmigration.com, and ACLU Immigrants’ Rights Project Staff Attorney Michael Tan’s post at the ACLU blog.

Readers (including immigration law students being introduced to immigration detention) may find the Ninth Circuit’s description of the  nature of civil immigration detention particularly compelling:

“Class members [in Rodriguez v. Robbins] spend, on average, 404 days in immigration detention. Nearly half are detained for more than one year, one in five for more than eighteen months, and one in ten for more than two years. In some cases, detention has lasted much longer: As of April 28, 2012, when the government generated data to produce to the petitioners, one class member had been detained for 1,585 days, approaching four and a half years of civil confinement.

Non-citizens who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability. Requesting relief from an IJ increases the duration of class members’ detention by an average of two months; appealing a claim to the BIA adds, on average, another four months; and appealing a BIA decision to the Ninth Circuit typically leads to an additional eleven months of confinement. Class members who persevere through this lengthy process are often successful: About 71% of class members have sought relief from removal, and roughly one-third of those individuals prevailed. However, many detainees choose to give up meritorious claims and voluntarily leave the country instead of enduring years of immigration detention awaiting a judicial finding of their lawful status.

Class members frequently have strong ties to this country: Many immigrated to the United States as children, obtained legal permanent resident status, and lived in this country for as long as twenty years before ICE initiated removal proceedings. As a result, hundreds of class members are married to U.S. citizens or lawful permanent residents, and have children who were born in this country. Further, many class members hold steady jobs—including as electricians, auto mechanics, and roofers—to provide for themselves and their families. At home, they are caregivers for young children, aging parents, and sick or disabled relatives. To the extent class members have any criminal record—and many have no criminal history whatsoever—it is often limited to minor controlled substances offenses. Accordingly, when class members do receive bond hearings, they often produce glowing letters of support from relatives, friends, employers, and clergy attesting to their character and contributions to their communities.

Prolonged detention imposes severe hardship on class members and their families. Civil immigration detainees are treated much like criminals serving time: They are typically housed in shared jail cells with no privacy and limited access to larger spaces or the outdoors. Confinement makes it more difficult to retain or meet with legal counsel, and the resources in detention facility law libraries are minimal at best, thereby compounding the challenges of navigating the complexities of immigration law and proceedings. In addition, visitation is restricted and is often no-contact, dramatically disrupting family relationships. While in detention, class members have missed their children’s births and their parents’ funerals. After losing a vital source of income, class members’ spouses have sought government assistance, and their children have dropped out of college.”

-JKoh