Justine N. Stefanelli
The US Supreme Court’s decision in Jennings v. Rodriguez, 583 U.S. ___ (2018) (slip opinion), denying bail hearings to thousands of detainees is a serious blow to the rule of law. Detaining categories of people without regard to their individual circumstances is an arbitrary interference with the right to liberty and, at the very least, should be accompanied by procedural safeguards. The most obvious of these is a temporal limit on immigration detention. However, US immigration law provides no maximum. The closest the law has come is the setting of a presumptively reasonable period of six months in relation to detainees who had received a final removal order and were detained on the basis of 8 U.S.C. § 1231, INA § 241. Zadvydas v. Davis, 533 U.S. 678 (2001). By allowing prolonged detention without a hearing to continue for individuals still in proceedings, Jennings highlights the need for improved or alternative safeguards for the use of immigration detention.
In Jennings, the majority emphasized that the statutes at issue—8 U.S.C. § 1225(a) and (b), INA § 235(a) and (b), which applies to applicants for admission, and § 1226(c), INA § 236(c), applicable to foreign national offenders subject to mandatory detention—impliedly limit detention because they apply to situations where detainees are awaiting the outcome of legal proceedings determining whether they have the right to remain. Therefore, according to the Court, detention is not indefinite because it ends when the proceedings conclude. In this way, the Court distinguished the situation in Zadvydas, where indefinite detention is possible under 8 U.S.C. § 1231 because there are no longer pending proceedings.
What is interesting and unfortunate is the Court’s dismissal of evidence that, though such proceedings must necessarily come to an end, in practice, this detention is much longer. This is especially the case with regard to § 1226(c) detention, which, as the dissent points out, can result in detention “considerably longer than six months” and, in any case, at least twice as long as originally contemplated by Congress. Jennings v. Rodriguez, 583 U.S. ___ (2018), Breyer, J., dissenting, pp. 18-19 (slip opinion). The result of the Jennings decision is that certain classes of immigrants can be detained for months, or even years, awaiting resolution of their cases without an individual assessment of whether it is appropriate to detain them. The 9th Circuit Court of Appeals attempted to remedy this serious problem by imposing a requirement to hold a bail hearing at six months, which the majority felt was pulled “out of thin air”, despite the evidence just mentioned and the fact that that period was considered appropriate by the Supreme Court in Zadvydas. Jennings v. Rodriguez, 583 U.S. ___ (2018), Opinion of the Court, pp. 28-29 (slip opinion).
The prospect of such lengthy periods of unevaluated detention highlights the need for either a time limit on detention or clear standards by which to assess the legality of prolonged detention. The European Union (EU) and the United Kingdom (UK) offer two interesting examples of these safeguards.
Beginning with the EU, the Return Directive 2008/115/EC governs the process by which EU member states must remove non-citizens (or third-country nationals in EU parlance) who have been determined to be unlawfully present on the territory of any EU member state. Article 15 of the Directive provides the legal basis to detain those for whom there is a risk of absconding or who have hampered the removal process. However, detention must only be used as a last resort, for the shortest period possible, and can only be maintained as long as the state authorities are diligently pursuing removal. The diligence requirement can also be found in immigration detention habeas corpus decisions by the US federal district courts (see, e.g., judgments from district courts within the Second Circuit: Scarlett v. US Department of Homeland Security Bureau of ICE, 632 F. Supp. 2d 214, 223 (2009); Toure v. Holder 2013 WL 1352288; Williams v. Holder, 2013 WL 1352306). The Directive also includes provisions requiring judicial review of detention and determinations of legality on an individual basis. However, perhaps the most important of its provisions is that which limits detention to a maximum of six months, extendable by an additional 12 months in exceptional circumstances (Article 15(6)).
The EU experience has demonstrated that having a maximum limit can have positive and negative consequences. On the plus side, a maximum time limit on detention provides judges with a failsafe means of ordering release which prevents indefinite detention. No matter the state of legal proceedings, once the 18 months is reached, individuals detained under the Directive must be released. See, e.g., Case C-357/09 PPU Kadzoev  ECR I-11189. A maximum set at the EU level also ensures that all the EU member states respect the maximum, including some states which may have previously permitted indefinite detention. On the negative side, a maximum period could result in a default minimum period. Though there is not yet evidence of this occurring in the EU context, this seems to be the case within the Second Circuit with regard to the presumptively reasonable period of six months set in Zadvydas. See, e.g., Fofana v. Holder, 947 F. Supp. 2d 329, 334 (2013); Haley v. Holder, 2013 WL 1945704, p. 7. In addition, a 2009 European Commission report on the Directive’s implementation at the member state level indicated that although there has been an overall reduction in the length of detention, the maximum has increased in eight of the 25 participating member states to comply with the Directive (p. 16). While such a risk is something of concern in legal systems with pre-existing limitation periods, this is not a threat in the US because of its lack of any cap on detention length.
If, as I suspect, the imposition of a maximum time period is not palatable to the Trump Administration, the US could look to the UK (focusing on England & Wales) as an alternative model. The UK does not participate in the EU Return Directive, thus, like in the US, there is no maximum limit on detention, no matter what type of detention is at issue. Instead a reasonableness measure is applied. Applicants for admission, foreign national offenders, and individuals with a final removal or deportation order each have their detention assessed according to whether it is reasonable in all the circumstances. The precise test of legality is not statutory, but rather was developed by the Administrative Court in the Hardial Singh case. R (Hardial Singh) v. Governor of Durham Prison  EWHC 1 (QB). In that case, an application for a writ of habeas corpus was brought by a man who had been detained for six months and who argued that his detention had become prolonged and therefore unlawful. The Court agreed.
In determining that Mr. Singh’s detention was unlawful, the Court created a set of guidelines now known as the Hardial Singh principles: (1) the power to detain can only be used for the purpose of deportation and the state must actually intend to deport the person at issue; (2) the detention can only last for a period that is reasonable in all the circumstances; (3) if it becomes apparent that deportation will not occur within a reasonable period, the power to detain can no longer be exercised; and (4) the state must act with “reasonable diligence” to effect deportation. R (Hardial Singh) v. Governor of Durham Prison  EWHC 1 (QB), para. 7.
The Hardial Singh principles are used by the Administrative Court when judicially reviewing detention, and are part of the Home Office’s assessment of detention in the administrative review process. In the UK, the Home Office has oversight of immigration matters. They even apply to detention akin to that under 8 U.S.C. § 1226(c), though in a slightly altered form. Hussein v. S.S.H.D.  EWHC 2492 (Admin) (adjusting principles 1 and 4). In 2001, the Court of Appeal (England and Wales) expanded on the meaning of “reasonable in all the circumstances” by providing a list of factors to consider during review. These are: (1) whether the individual is cooperating with removal; (2) the likelihood that the individual would abscond or re-offend (if applicable); (3) the length of the detention to date; (4) any obstacles to deportation and how they are addressed by the state; (5) the conditions of detention; and (6) the effect of detention on the detainee and his/her family. R (I) v. S.S.H.D.  EWCA Civ 888, p. 46.
An examination I’ve conducted of cases of prolonged detention before the Administrative Court demonstrates that, on the whole, the judges take their responsibility under the principles seriously and carefully evaluate the factors listed above. Inclusion of the third factor is particularly interesting in light of the rejection by the majority in Jennings of the idea that the length of detention prior to a bond hearing should be considered in determining whether release is appropriate. Jennings v. Rodriguez, 583 U.S. ___ (2018), Opinion of the Court, p. 23 (slip opinion). These factors are considered in relation to each individual detainee, regardless of the basis upon which he or she is detained. However, in the 63 cases that I evaluated, detainees were held for an average length of 2.1 years, despite the operation of the principles. This suggests that, though the principles comprise a clear and legally binding set of review factors, they still allow for the possibility of prolonged detention. In fact, there are examples of Administrative Court cases where the detainees were held for four and five years. R (Raki) v. SSHD  EWHC 2421 (Admin) and R (Mhlanga) v. SSHD  EWHC 1587 (Admin). An obligatory maximum would guard against these extraordinary deprivations of liberty and preclude indefinite immigration detention, even where the maximum is set at the top end of the scale, as in the Return Directive.
Though both models have their downsides, either would be an improvement on the situation in the US following Jennings. However, I suggest that the most effective way of ensuring against arbitrary detention would be through a combination of the EU and UK models: a statutory review process with binding legal standards, and a statutory maximum period of detention. The EU Return Directive is somewhat representative of this approach because in addition to the maximum period, it requires states to consider factors such as the diligence of the state and the likelihood of removal. However, in my view, the factors required for consideration under the Hardial Singh framework are more robust and inclusive. Moreover, they apply to all types of immigration detention, which guarantees that individuals within the scope of the Jennings judgment would receive some sort of review of the lawfulness of their detention, whether or not the detention is viewed as mandatory in nature.
Though this would bring the United States closer to a framework complaint with rule of law norms, a statutory maximum alone is insufficient. Careful attention must be paid to prescribe an upper limit by reference to important factors such as the average length of detention and the time it reasonably takes to complete immigration processes. Considering these factors will help prevent an arbitrary time limit that result in prolonged, if defined, detention. According to the Justice Department, the average length of stay in US detention facilities in 2015 was 34.4 days. In addition, it is vital that a review process with binding legal standards is part of the framework. This will help ensure that any maximum does not become a default minimum and that detention is only maintained as long as it is necessary.
Given the current climate in the US, it is unlikely that there will be political will to amend the US Immigration and Nationality Act to enhance the safeguards available to migrants in detention. This means that classes of people will continue to be detained for prolonged periods during their legal proceedings without the opportunity for review or a guaranteed date of release.
Dr. Justine Stefanelli is a Senior Research Fellow at the Bingham Centre for the Rule of Law in London, where she has been working since obtaining her J.D. from the University of Pittsburgh in 2005. Her doctoral research was on judicial review of immigration detention in the US, UK and EU.