Recent news reports and studies have shed new light on the massive scope of the United States’ deportation regime and its destructive impact on families and communities. Even as President Obama calls for a review of deportation policies, his administration continues to lock up huge numbers of people during their removal proceedings and appeals. Whereas people in criminal proceedings cannot be detained without an individualized hearing to assess danger and flight risk, many people in the removal system are held for months or even years without bond hearings. Since Congress enacted several mandatory immigration detention provisions in 1996, the number of people in immigration detention has increased by a factor of six. Today, Congress spends about two billion dollars a year on immigration detention, funding 34,000 detention beds at any given time.
The scope of this ostensibly civil detention scheme belies the Supreme Court’s mantra that in “our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739 (1987). In the 2001 decision Zadvydas v. Davis, the Court recognized that the strict due process requirements it had previously applied to other forms of civil detention extend to immigration detention and construed the statute that governs detention of people with final removal orders to presumptively require release after six months. 533 U.S. 678 (2001). Yet two years later, in Demore v. Kim, the Court rejected an as-applied due process challenge to the pre-final-order mandatory immigration detention statute, INA § 236(c). 538 U.S. 510 (2003). Critically, it distinguished the six-month detention at issue in Demore from the indefinite detention in Zadvdyas, emphasizing that § 236(c) detention “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.” 538 U.S. at 530.
In many cases, of course, removal proceedings last much longer than five months, leading to extended periods of detention. While any detention without a bond hearing offends basic concepts of fairness, the extreme deprivation of liberty inherent in lengthier periods of detention has particularly stark effects. Prolonged detention can irreparably damage mental and physical health, family relationships and finances, as well as the ability to obtain counsel and challenge deportation. In the wake of Demore, three circuit courts and numerous district courts have recognized that prolonged mandatory detention raises serious due process problems, and have accordingly construed the ambiguous language of INA § 236(c) to require a bond hearing when detention becomes prolonged. The Ninth Circuit has adopted a bright-line rule that detention exceeding six months requires a bond hearing, whereas the Third and Sixth Circuits have adopted a loosely defined standard that asks whether detention has become unreasonably prolonged. Compare Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) with Diop v. ICE/DHS Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), and Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003).
As I argue in my recent article, Due Process and Temporal Limits on Mandatory Immigration Detention, 65 Hastings L.J. 363 (2014), courts should recognize a clear upper limit on mandatory detention. The Ninth Circuit’s rule reconciles the different strains of due process jurisprudence discussed above and recognizes that six months is a constitutionally significant benchmark. Similarly, a review of lower court decisions applying the Third Circuit’s reasonableness standard shows that as a practical matter, this standard too often leads to inconsistent treatment of similar facts and shifts focus away from the core due process concern of quantifying the deprivation of liberty.
Additionally, institutional considerations favor a clear limit. Most people in prolonged mandatory detention are unrepresented and have greater access to immigration court than to federal habeas corpus proceedings. The Ninth Circuit’s rule allows overloaded immigration judges to quickly and routinely determine when bond hearings are required, even in pro se cases; whereas a reasonableness analysis can be more complex than the bond hearing analysis itself.
This six-month temporal limitation is modest, insofar as it requires a bond hearing rather than outright release. It nevertheless represents an important step toward taking due process more seriously in the context of immigration detention, and illustrates the importance of considering institutional realities in a constitutionally-motivated analysis.
Farrin Anello is a Visiting Assistant Clinical Professor at Seton Hall University School of Law.
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