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This article originally appeared on Law360: https://www.law360.com/immigration/articles/972810/assessing-constitutional-constraints-on-immigrant-detention

Starting in July 1999, Hoang Minh Ly, a refugee and permanent resident of the United States, spent 564 days in detention by U.S. immigration authorities who sought his removal to his native Vietnam.[i]  He was released from detention only after a U.S. District Court in September 2000 ordered that an immigration judge provide him with a bond hearing.  That order was the result of an August 1999 petition for a writ of habeas corpus filed by Ly.  The ability of the government to detain immigrants for indefinite periods of times reached the Supreme Court again last week.

Last week, the U.S. Supreme Court heard oral arguments for the second time in Jennings v. Rodriguez, a class action that challenges the constitutionality of the immigration detention edifice Congress created in IIRIRA in 1996.  Alejandro Rodriguez is a permanent resident of the United States and was convicted of possession of a controlled substance and “joyriding.”  When the government sought his removal, it detained him for the nearly three years that those proceedings lasted.  Mr. Rodriguez was released only when the immigration judge granted relief from removal.  He challenged, along with several other class representatives, his prolonged detention without review by a neutral arbiter.  His case made its way to the Supreme Court for the second time last week.  During a spirited oral argument, the Justices seemed to suggest that there are constitutional constraints on the government’s ability to detain immigrants.

Immigration law subjects several different classes of immigrants to unreviewable detention during proceedings to determine whether they ought to be removed from the United States.[ii]  Individuals arriving at a port of entry without a proper entry document and individuals who have been convicted of certain offenses are subject to “mandatory detention,’ which eliminates the right to a custody review by a neutral arbiter.  In 2003, in Demore v. Kim, the Court determined that detained immigrants had no constitutional right to a bond hearing.[iii] In Demore, the majority accepted the representation of the government that such detention was usually brief: “In sum, the detention at stake under §1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” [iv] Importantly, in his concurrence, Justice Kennedy wrote that a certain class of immigrant “could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.”[v]

In Jennings, the Supreme Court now must determine whether the Constitution allows for open-ended and limitless mandatory detention without an individualized hearing before a neutral arbiter.  The Court conducts this against the backdrop of two significant developments: (1) the revelation that detention often last much longer than presumed by the Justices in Demore; and (2) the dramatic expansion of the immigration detention system, the growth of the for-profit prison industry, and the current administrations plans to grow immigrant detention in the U.S.

In Jennings, the Court is reviewing a U.S. Court of Appeals for the 9^th Circuit decision that upheld an injunction entered by a District Court.[vi]  The injunction requires an immigration court to provide an individualized bond hearing for immigrants in detention every six months.  The injunction also placed the burden of proof for continued detention of the government, requiring it to demonstrate that the detained immigrant was either a flight risk or a danger to the community.  The 9^th Circuit affirmed the decision stating that it was interpreting the Immigration & Nationality Act in this manner to avoid a “serious constitutional problem.”

Throughout the litigation of this matter, the government has asserted broad authority to detain immigrants for an indefinite period of time.  The government has stressed that Congress conferred such authority on the government in the Immigration & Nationality Act.  Deputy Solicitor General Malcolm Stewart, arguing on behalf of the government, opened by characterizing the immigrant’s claim as a seeking a “constitutional right to be released into this country” for the duration of removal proceedings.  He argued that the Court has never found such a right and that the language of the statute does not command it.

Stewart started by discussing the first class of respondents: the immigrants arriving at a port of entry and the procedures under 8 U.S.C. 1225.  Immigrants who arrive at a port of entry with no valid entry document will generally be placed into expedited removal proceedings which forces a prompt return to where they came from.  However, if the immigrant asserts a fear of persecution, they must be given a “credible fear” interview, in which they must present what amounts to a prima facie claim to asylum.  If the immigrant passes the credible fear interview, she is allowed to present a full asylum claim before an immigration judge.  Stewart noted that Congress presupposed that immigrants arriving at the border who have passed a credible fear interview would be detained for the duration of their asylum claim.  Yet, Justice Ginsburg interjected that the government can parole such individuals into the U.S.  Stewart replied that, yes, indeed, the government can, and does, parole people and does so using the same criteria that an immigration judge might evaluate in bond proceedings: dangerousness and flight risk.

Justices Sotomayor then asked pointedly, “what other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely.”  When Stewart offered that the Court has stated that “whatever process Congress chooses to give is due process,” an exasperated Sotomayor exclaimed that that approach was “lawlessness.”

After Justice Ginsburg pressed Stewart on whether the only options for arriving immigrants are detention or release and whether there was a monitoring option which could alleviate some of the government’s concern of flight, t was Justice Breyer’s chance to turn up the heat.  Breyer pointed out how the government has authorized bond hearings for other immigrants depending upon where they encountered.  Breyer then noted that since even “triple axe murderers” get bond hearings, why shouldn’t immigrants in removal proceedings?

Justice Kagan then set a trap for Stewart by asking whether the government’s argument is “premised on the idea that they [the people arriving at the border] simply have no constitutional rights?”  When Stewart agreed, Kagan leapt and asked whether they could be tortured or placed into labor camps. Stewart clarified that the meant that they have no constitutional rights with respect to the determination whether they will be allowed to enter the country.  However, Kagan was ready and asked whether “arbitrary confinement” and “arbitrary detention” isn’t “pretty close to” torture or hard labor.  Justice Kagan called the lack of an individualized hearing “a problem … in our constitutional law.”

Justice Kennedy then spoke up.  His concurrence in Demore seemed to predict this case.  Justice Kennedy asked whether detention violates due process if there is an unreasonable delay in that detention.  Stewart replied that it would be a violation of due process if the delay is attributable to the government.  When Kennedy sought to define what attributable to the government meant, Stewart retreated to the position that arriving immigrants have no constitutional rights.  Kennedy seemed bothered by the inconsistency between Stewart’s concession that lengthy detention could violate due process and his position that arriving immigrant have no constitutional rights.

Both Justices Roberts and Alito seemed to suggest that they thought that unreasonably delayed and prolonged detention without review would create a constitutional violation.  Alito inquired about the appropriate remedy.

Ahilan Arulanantham argued for the immigrants.  Arulanantham argued that the court has never endorsed prolonged and indefinite detention without review and that the power to detain is limited to detention necessary to ensure that a person appears for proceedings or when the person presents a danger to the community.

After Justice Ginsburg asked why the 9^th Circuit only allowed a bond hearing after six months of detention when criminal defendants receive an initial hearing, Justice Kagan indicated that Demore allowed for initial detention but only for a few months.  Arulanantham replied that the time of detention for the class members was much longer.

The Justices seemed most interested in the remedy created by the injunction and repeatedly pressed Arulanantham on the six month review.  Replying to Justice Ginsburg, Arulanantham cited the post-removal order six month custody reviews required by the court in Zadvydas v. Davis.[vii]  Justice Alito pushed back and stated that the government can introduce custody review rules by regulation or Congress could pass legislation.  Why, Justice Alito wanted to know, does the Constitution require a review after six months and not five, seven or eight.  Arulanantham replied that the six month rule grew out of the Court’s decision in Zadvydas.  He also stated that the courts below decided that an administrable rule needed to be in place for judges to consider.  As a practicing immigration lawyer, Arulanantham was able to rattle off the lengthy detention periods of some of his clients.

Justice Roberts wanted to know just how many people might be affected by the six month custody review and Arulanantham replied that, according to government statistics, 90 percent of mandatory detention cases are completed within six months and that the class represented the “outliers” of the statistics. Roberts wanted to know whether it was true or significant that the longer cases involved immigrants who were preparing their defenses to deportation.  Arulanantham replied that people such as Rodriguez should not be penalized for seeking relief and that immigrants seeking relief were less of a flight risk.

Justice Alito once again asked why the bond hearing should not happen immediately rather than at the six month mark.  Arulanantham replied plaintively that that was the issue in Demore and the immigrant lost on that issue.  He characterized Demore as allowing for “brief detentions as to people who had conceded their deportability” but leaving open the question of prolonged detention for individuals like Rodriguez.

The Court seemed to be pretty united in thinking that prolonged detention with no review by a neutral arbiter would violate the Constitution and the questions reflect a court grappling with how to address that issue.  If the court does indeed rule that prolonged detention without review by an independent judge violates the Constitution, it must now navigate its way through a thicket of options: leave the six month rule in place, require individualized habeas petitions, or simply disallow unreasonably prolonged detention and allow the courts to figure out what that means.  After extensive briefing and two rounds of oral argument, we will next hear from the Justices.

[i] Ly v. Hansen, 351 F.3d 263 (6^th Cir. 2003).

[ii] 8 USC 1225; 8 USC 1226.

[iii] 538 U.S. 510

[iv] Id. at 530

[v] Id. at 532 (Kennedy, J., concurring)

[vi] Rodriguez v. Robbins, 804 F.3d 1060 (9^th Cir. 2015)

[vii] Zadvydas v. Davis, 533 U.S. 678 (2001).