Los Angeles, CA — Today, the Supreme Court ruled in the case Jennings v. Rodriguez that people held in U.S. immigration detention, including asylum seekers and legal permanent residents, are not entitled to a bond hearing and are subject to indefinite detention.
“We are appalled by our nation's highest court,” said Christina Fialho, an attorney and Co-Founder and Co-Executive Director of Community Initiatives for Visiting Immigrants in Confinement (CIVIC). “Rather than uphold the Declaration of Independence, the Supreme Court has decided to look the other way and uphold a ‘legal fiction,’ as Justice Breyer called it.”
“We thank Justice Breyer for his passionate dissent, and we stand with those who will continue to be locked away in prisons and jails indefinitely,” Fialho said. “This is a dark moment in our nation's history.”
“We are devastated by this decision,” said Jessica Rofé, an Immigrant Defense Fellow at the NYU School of Law’s Immigrant Rights Clinic. “This decision has far-reaching consequences for our immigrant community members, many of whom will languish in immigration jails, separated from their loved ones and communities.”
Jennings presented an opportunity to take a modest step forward in addressing the many problems with immigration detention. A bond hearing would have afforded 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. In January 2017, 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 2016, 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