The script is fairly simple: someone gets arrested and without much delay he is haled into court where a judge decides whether to grant bail. As depicted on television, this happens as a matter of routine. Everyone, it seems, accepts that it’s a judge’s role to decide whether a person who has been arrested should remain jailed pending prosecution. Not so when it comes to immigration law. Migrants are frequently locked up without seeing an immigration judge.
Today, the Supreme Court hears arguments about the legality of prolonged mandatory detention without a hearing. In Jennings v. Rodriguez, No. 15-1204 (U.S.), the Court considers whether migrants subject to the Immigration and Nationality Act’s “mandatory detention” clause can be imprisoned indefinitely while their case makes its way through the severely back-logged immigration courts without the opportunity to ask an immigration judge for release. The U.S. Court of Appeals for the Ninth Circuit previously held that migrants are entitled to a hearing before an immigration judge after six months of confinement. Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) (for an earlier analysis of this case, see here). Failure to grant migrants detained for a prolonged period a bond hearing threatens to violate the Fifth Amendment’s Due Process Clause. To avoid that problem, the Ninth Circuit granted all imprisoned migrants a bond hearing before an immigration judge every six months. At that hearing, the government must carry the burden of showing that the migrant presents a flight risk or public safety threat. The Second Circuit found a similar constitutional concern and, in Lora v. Shanahan, adopted a similar remedy. 804 F.3d. 601 (2nd Cir. 2015) (for an earlier analysis of this case, see here).
In opposing the position adopted by the Ninth Circuit, the federal government seems intent on letting ICE officers decide who should be locked up instead of immigration judges. Indeed, if the federal government wins at the Supreme Court ICE officers will have enormous power to declare migrants to be subject to mandatory detention because few migrants will be able to escape this characterization. Without the right to an attorney, many detained migrants can’t afford to hire someone to represent their interests. Without an advocate who can go head-to-head with trained government lawyers, few migrants can successfully navigate the legal labyrinth that the Justice Department considers an adequate safeguard against Executive Branch overreach: skilled use of the ancient writ of habeas corpus filed in a federal district court asking that a federal judge order an immigration judge to consider whether a detained migrant even merits confinement. This is a tough line for most lawyers to follow; it’s effectively impossible for migrants who are not U.S.-trained lawyers, often unfamiliar with the United States legal system, and, let’s not forget, imprisoned.
In contrast, the Ninth and Second Circuits took very moderate positions inclined toward liberty. Both Jennings and Lora suggest that liberty remains a value so cherished that we presume that everyone is entitled to their liberty. If the government wants to strip someone of their ability to walk freely, the government should be required to convince an immigration judge that there are good reasons to lock up someone—either because the person is likely to disappear or endanger others. To be clear, neither Jennings nor Lora would require that ICE attorneys do this for everyone. Both decisions only require this hearing for someone detained for at least six months. Moreover, neither decision guarantees that a migrant is released. Just the opposite is true. A migrant is entitled to a hearing before an immigration judge and nothing more. Many times, judges are convinced that detention is appropriate so they deny bail. In New York after Lora, for example, bond was denied in thirty-eight percent of instances in a nine-month period.
The federal government’s position comes down to a simple “trust us, we’re the government.” But there are plenty of reasons not to trust immigration officials. For one, without the opportunity to request a bond from an immigration judge, migrants are destined to be subjected to unreviewed decisions made by law enforcement officers who are not trained in the details of legal analysis. It’s hard enough for immigration judges to decide if someone has been convicted of, say, a crime of violence type of aggravated felony. It makes little sense to give ICE field officers the power to make these decisions without a meaningful opportunity for review. Second, immigration officials have already proven themselves untrustworthy when it comes to reporting about immigration detention. Over the summer, the Solicitor General sent the Supreme Court a rare mea culpa about data it gave the Court over a dozen years earlier. Despite that, the Solicitor General has again submitted new data about the federal government’s immigration detention practices. Because the federal government controls the data and the opportunity for testing its reliability has long passed, it would be troubling if the justices were to give these new data much weight.
Worse, the federal government’s position reflects the most pernicious sentiments of attacks against the role of the judiciary. While I’m fully aware that immigration judges aren’t members of the judiciary, as the neutral arbiters of the immigration world they serve an analogous role. Their job is to hear out the parties, then apply the relevant law to the facts. All that the Ninth and Second Circuit decisions do is restore them to this role—admittedly, after six months of complete deference to law enforcement officials. By resisting these decisions, the Justice Department has embraced the notion that immigration judges can’t be trusted to decide who is too dangerous or too likely to abscond. Instead, the Obama Administration’s lawyers seem to think that only Executive Branch officers can make this important decision. That is preposterous, but it’s also dangerous to the legal system. If law enforcement officers can make decisions without any meaningful oversight by neutral parties, where is the oversight? There is none. That is the frightening proposition that has been the immigration detention system’s reality for more than a decade.