The U.S. Court of Appeals for the Ninth Circuit recently reinforced a semblance of rationality that is long tried to inject into the federal government’s civil immigration detention practice. In Rodriguez v. Robbins (Rodriguez III), Nos. 13-56706 & 13-56755, slip op. (9th Cir. October 28, 2015), the court largely affirmed its commitment to critically examining ICE’s conduct inside the vast immigration detention center archipelago. This decision builds off a sustained challenge to detention that advocates have brought before the Ninth Circuit repeatedly since 2009 and in the Central District of California since 2007. See Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127 (9th Cir. 2013); Rodriguez v. Hayes (Rodriguez I), 578 F.3d 1032 (9th Cir. 2009).
Faced with another opportunity to revisit how immigration detention operates, the Ninth Circuit drew an important line limiting the federal government’s powers to detain migrants with little concern for whether they actually merit detention. The court held fast to an existing injunction requiring ICE to provide a bond hearing for all migrants held for six months or more. Immigration judges presiding over these hearings are required to assess whether the detained migrant poses a flight risk or danger to the community. If ICE provides clear and convincing evidence of flight risk or dangerousness, continued detention remains permissible. After another six months, ICE must bring detained migrants before an IJ once again to reevaluate the flight and public safety risks. Meanwhile, IJs must consider whether an alternative to detention method would adequately ameliorate the flight risk or public safety threat.
This is a radical position only because ICE has long claimed the power to detain for extensive periods of time without the need to show that detention is needed. Instead, it takes the position that the INA authorizes—and, in some instances, requires—it to keep migrants behind barbed wire fences without any concern about actual dangerousness or flight risk potential. Under this view, the presumption that stretches across Western legal traditions that everyone is entitled to their liberty is thrown out the window. Migrants, ICE’s position suggests, can be locked up on a whim.
Rodriguez III is only the latest in the Rodriguez line of cases through which the Ninth Circuit has pushed back against that anomalous and problematic—legally and morally—position. Like the district court that has been involved in this lengthy litigation alongside the Ninth Circuit, the appellate court’s decisions consistently reflect a realistic recognition of the human impact of detention. In Rodriguez III, the court repeatedly referred to the long duration of detention that has become typical for the broad group of detainees leading this challenge. The members of the plaintiff’s class, the court noted, “spend, on average, 404 days in immigration detention. Nearly half are detained for more than one year, one in five for more than eighteen months, and one in ten for more than two years.” Worse yet, migrants who choose to pursue available legal claims spend more time behind barbed wire. “Requesting relief from an IJ,” the court wrote, “increases the duration of class members’ detention by an average of two months; appealing a claim to the BIA adds, on average, another four months; and appealing a BIA decision to the Ninth Circuit typically leads to an additional eleven months of confinement.” As many as a third of these migrants ultimately obtain relief from removal that allows them to remain in the United States.
Though the opinion doesn’t quite say it, the obvious implication from this description is that the court has honed in on the harsh toll that detention takes on people who are doing nothing more than following the legal channels established by Congress. They are, in effect, doing exactly what a political community that fashions itself as beholden to the rule of law asks that they do. And for that they languish in immigration detention without anyone bothering to ask whether they pose a threat to the public or are likely to fail to show up for court dates. To avoid clashing with the due process principles embedded into the Fifth Amendment, the court limits ICE’s detention powers.
Despite Rodriguez III’s robust acknowledgement of the constitutionally-derived liberty interest impeded by detention, the Ninth Circuit does not go as far as advocates sought. It removed from the plaintiff’s class, for example, people who are in detention following a removal order. Similarly, it refused to require IJs presiding over bond hearings of folks who have been in detention for a prolonged period of time to consider how much longer a migrant is likely to be detained or the likelihood of eventual removal. These factors, the court concluded, “are too speculative and too dependent upon the merits of the detainee’s claims for us to require IJs to consider during a bond hearing.”
These setbacks aside, the advocates who have spearheaded this strong defense of the notion that everyone ought to be presumed to be able to walk freely unless there is a countervailing reason for confinement ought to proud of the outcome. Combined with the Second Circuit’s decision in Lora v. Shanahan, No. 14-2343-pr, slip op. (2d Cir. Oct. 28, 2015) (analyzed on this blog here and here), issued the same day as Rodriguez III, there is much for advocates who have long been frustrated by ICE’s remarkable and troubling detention powers to celebrate.