This term, the Supreme Court holds in its hands the fate of thousands of people languishing in immigration prisons in the United States. On November 30, 2016, the Court will hear arguments in the case, Jennings v. Rodriguez. Jennings is about solving the problem of the long-term incarceration of people who are navigating our broken immigration system. Under current law, the government detains thousands of immigrants—many of whom will ultimately win their cases— for months and even years, without the basic due process of a bond hearing to consider whether their detention is even justified.
In 2015, the ACLU won a ruling from the Ninth Circuit Court of Appeals that individuals who are fighting their deportation cases are entitled to a bond hearing once their immigration detention exceeds six months. At this bond hearing, they can secure release if the judge finds that they are not a danger to the community or a flight risk. A similar ruling was reached in the Second Circuit Court of Appeals.
The government appealed the rulings, and the Supreme Court will now decide in Jennings whether the law requires that individuals who have been detained for six months have access to a day in court on whether their detention is justified.
Jennings presents an opportunity to take a modest step forward in addressing the many problems with immigration detention. A bond hearing would afford due process to people languishing in detention by allowing them to be considered for release based on their individualized circumstances. By preventing needless detention, the Supreme Court can minimize the enormous harms and costs of detention not only on detained persons but also on their families and communities.
In December 2016, the Supreme Court ordered additional briefing in Jennings on the constitutionality of detaining people for months and years without access to a bond hearing. Last month, the ACLU and the Trump Administration filed supplemental briefs, and the NYU Immigrant Rights Clinic and the Immigrant Defense Project submitted a follow-up "stories" amicus brief, available here.
This unusual request for further briefing signals that the Supreme Court is, at the very least, interested in addressing the constitutionality of prolonged detention without access to a day in court. When the case was argued on November 30, some Justices expressed deep concern about our government's current practices. Justice Elena Kagan said, for example, that "[y]ou can't just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time . . . ." When the Government offered that 90% of cases conclude after 19 months, Justice Sonia Sotomayor replied, "We are in an upended world when we think ... 19 months is a reasonable time to detain a person."
But the Government argued that there was no problem with detaining an immigrant for three years without a bond hearing, and even refused to draw the line at twenty years, conceding only that it "might be a concern." For Hilarion Warren Joseph, a decorated combat veteran from the Gulf War, three years in detention was nearly unbearable. Mr. Joseph, who is now a U.S. citizen, had been placed in mandatory detention based on a conviction for which he was sentenced to only probation. He explains that the harsh conditions of detention are "a form of intimidation, so we could be forced to 'sign out' and be deported. We had to make a decision between that or to stay and suffer."
Further arguments are not anticipated in Jennings and a decision is still expected by late June or early July.