The American Bar Association (ABA) filed an amicus brief with the Supreme Court urging the justices to require individualized bond hearings within six months for immigration cases involving prolonged detention. The ABA brief also states that the Supreme Court should reject the Department of Justice’s approach that requires detainees to challenge their detention through habeas petitions.
Prolonged Detention Capped at Six Months
The amicus brief – filed by the ABA in the Jennings v. Rodriguez case – supports the decision of the 9th Circuit Court of Appeals that defines “prolonged detention” as six months, which complies with the Immigration and Nationality Act, as well as the due process clause of the Fifth Amendment.
Without a clear and strict deadline, the brief states that “individuals who may well be entitled to release are confined to languish in prison-like conditions for years.”
Three detention statutes affecting undocumented immigrants are under review in the case. Federal circuits have agreed that undocumented immigrants in prolonged detention deserve individualized bong hearings, but the circuits have not agreed on three things:
- how to determine when detention becomes prolonged
- who bears the burden of proof in an individualized bond hearing
- what standard of proof should apply
While the detention statutes are at issue, the ABA urges the court to affirm the use of a bright-line rule which will require periodic bond hearings for undocumented immigrants. The brief says that a bright-line rule would “provide some degree of certainty” and “articulate more clearly the boundaries of what is permissible” under the U.S. Constitution.
Previous Supreme Court Decision Might Have Been Based on Bad Info
The amicus brief submitted by the ABA also notes that a 2003 Supreme Court decision upholding a blanket denial of bail to undocumented immigrants when in custody and appealing deportation – Demore v. Kim – might have been based on bad information provided by the Executive Office for Immigration Review.
The Justice Department disclosed last August that the average total time spent in detention in appealed cases was more than one year, instead of the five-month period cited in the Supreme Court opinion in Demore v. Kim.
The brief states, “Over a decade later, the government has failed to decrease detention time, forcing a detainee pursuing relief to face a significant probability of spending a year or more in detention.”
The ABA amicus brief is an example of an effort to improve the state of detained immigrants. If you or a loved one is facing problems with immigration status, schedule a consultation with Lyttle Law Firm. You can reach us at (512) 215.5225.