The Supreme Court reversed a decision by the 9th Circuit Court of Appeals to grant bond hearings to detained individuals every six months, allowing instead for indefinite detention—an average of 13 months, but for some, years—without the prospect of release to more easily prepare a case and reunite with family.
In February, the U.S. Supreme Court handed down a 5-3 ruling that detained immigrants facing deportation do not have a right to periodic bond hearings to determine if they are eligible for bond and how much that bond should be. (Justice Kagan recused herself because she authorized a pleading in the case while solicitor general during the Obama administration.) Based on the majority’s narrow reading of the immigration statute in question, the higher court held that detention is authorized “until the end of the applicable proceedings,” a timeline that averages about a year, but can take as long as several years. For now, the decision halts the slow but steady trend toward granting bond hearings and providing more reasonable bond to eligible detainees who can better prepare for their full immigration hearings once released and surrounded by the support of their families and communities.
THE IMPORTANCE OF BOND HEARINGS: In recent years, the availability and outcomes of bond hearings for detained immigrants have been shifting, and while it is still difficult to secure release, some obstacles have been removed for who met the requirements for bond release (that is, deemed an unlikely flight risk and posing no danger to society). In the case on which the Supreme Court just ruled, Jennings v. Rodriguez, the 9th Circuit Court of Appeals (which covers the western U.S. states, Alaska, and Hawaii) interpreted immigration law to allow for a bond hearing after 6 months of detention (and every 6 months thereafter if the individual continues to be held), opening up this release option to detainees who might not otherwise be granted a bond hearing. (More on this below.) In the interest of promoting respect for human dignity and due process, the KBI believes that people have a right to be free on bond until their case is heard.
Then in 2017, the 9th Circuit ruled that bonds in these cases must be based on financial resources and ability to pay (Hernandez v. Sessions). Instead of bond amounts as high as $15,000—completely out of reach for most detainees and unjustifiable under the standards that were met in order for bond to be granted in the first place—it became possible to argue for more reasonable bonds. Though immigration judges require excessive documentation from detained individuals to prove inability to pay, this is still an improvement to the system, and the decision made it possible for the KBI’s legal fellow to successfully argue for the minimum bond of $1,500 in the cases of two individuals we’ve served. With a more affordable bond and evidence of community and family ties, they were released from detention, a victory for fairness and family unity.
IMPLICATIONS OF THE DECISION: To understand who is affected by the Supreme Court’s decision to allow indefinite detention, legal rules about immigrant detention and access to a bond hearing come into play. These vary based on an individual’s particular profile and how they arrived in the U.S. For individuals apprehended while crossing the border, detention is discretionary rather than required, and if detained, a bond assigned by Immigration and Customs Enforcement as well as other release options are available to them. Immigrants who present themselves at ports of entry, however, are subject to mandatory detention; their only option for release while awaiting their immigration hearings has been access to a 6-month bond review, now eliminated by the recent Supreme Court decision.
The result will be more prolonged detention for immigrants affected by the ruling, asylum seekers and long-term U.S. residents among them. As we’ve covered before, the impact of longer periods in detention is detrimental, at times dangerous, for detained individuals; many suffer inhumane treatment, poor conditions, inadequate medical care, and family separation. The experience can add to the traumas of migration, violence, or protracted uncertainty they have already endured, leaving otherwise resilient people feeling hopeless, even opting for deportation to a deadly situation rather than remaining in detention.
OTHER CONSIDERATIONS: In handing down its ruling, the Supreme Court also sent the case back to the 9th Circuit to evaluate both the constitutionality of the immigration statute and its status as a class action. The lower court must now determine if immigrants have a constitutional right to bond hearings regardless of how immigration statutory law is interpreted, a due process issue as well as a human rights one. If they decide that bond hearings are required under the Constitution, another appeal would be likely, and the Supreme Court would review the case again to uphold or reverse.
The question of whether the case can be a class action suit is important because class actions offer many detained immigrants, most of whom do not retain lawyers, a route to protections and justice they would not otherwise secure. Immigrants in detention are four times more likely to be released if they have legal representation, but there are several obstacles: the law does not require that the government provide a lawyer in most cases; legal services often prove too expensive; and privacy and access for client conferences make preparing a case more difficult. Both lawsuits referenced here are class-action lawsuits.
NEXT STEPS: Indefinite detention impacts the prospects for release in yet another way—by removing the preliminary step of a bond hearing from the process, detained immigrants must instead prepare for their full immigration hearing, a much more time-consuming and cumbersome undertaking. It takes over 120 hours to put together a case for a full immigration hearing whereas a bond hearing is much more straightforward. The implications for legal services, including the KBI’s legal fellow program, will be dramatic and translates into fewer detainees who can benefit from this pro-bono representation. For the KBI, it becomes another challenge in offering legal support to those most in need, and another reason to support the legal representation we are committed to providing.